Terms of Service and Use
Terms of Service and License
Last Updated: 5 May 2014
PLEASE READ THIS MEDLERT CONNECT TERMS OF SERVICE AND LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS IS A CONTRACTUAL AGREEMENT BETWEEN YOU AND MEDLERT, INC. (“MEDLERT”). BY DOWNLOADING, ACCESSING OR USING THE MEDLERT CONNECT APPLICATION AND RELATED SERVICES (COLLECTIVELY, “MEDLERT CONNECT” OR THE “APP”), CLICKING ON THE “I ACCEPT” BUTTON, OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY AND ON BEHALF OF THE COMPANY OR ORGANIZATION IDENTIFIED DURING REGISTRATION, AND TO BIND YOURSELF AND/OR THAT COMPANY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE MEDLERT CONNECT. THE TERM “YOU” OR “LICENSEE” REFERS TO YOU AND ANY ORGANIZATION WHICH USES OR BENEFITS FROM MEDLERT CONNECT.
Licensees may be (i) health care systems, hospitals, health care providers, assisted living facilities, and other caregivers who desire to schedule transport for their individual patients (collectively “Transport Requestors”, or (ii) transportation providers (e.g., ambulance service providers) (collectively, “Transport Providers”). Medlert Connect is designed to facilitate communications between Transport Requestors and Transport Providers in order to more efficiently arrange and manage transportation. Medlert does not provide transportation services or guarantee that any transportation service will occur or be successfully or appropriately performed. Transport Providers – not Medlert - are solely responsible for providing transportation.
Medlert provides Medlert Connect to Transport Requestors agreeing to this Agreement at no fee or expense. Transport Providers, however, will be charged in accordance with Medlert’s then current price list based on the number of Transport Requestors it is authorized to receive requests from through Medlert Connect.
PLEASE NOTE THAT ThIS AGREEMENT IS subject to change by Medlert in its sole discretion at any time. When changes are made, Medlert will make a new copy of the Agreement available on our Website (www.medlertapp.com) (the “Website”). We will also update the “Last Updated” date at the top of this Agreement. If we make any material changes, and you have registered to use Medlert Connect, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new Licensees and will be effective thirty (30) days after posting of notice of such changes for existing Licensees. If you do not agree to any change(s), you must stop using Medlert Connect. Otherwise, your continued use constitutes your acceptance of such change(s).
- 1. License and Right to Use
1.1. Limited License. Subject to the terms and conditions of this Agreement, Medlert hereby grants to Licensee a limited, non-exclusive, non-transferable license (without the right to grant sublicenses, except as otherwise provided below) to install, access and use Medlert Connect during the term of this Agreement in accordance with the Medlert Connect documentation and this Agreement.
1.2. Authorized Users.
1.2.1. Subject to the other terms and conditions of this Agreement, Licensee may distribute Medlert Connect to its employees and authorized agents or representatives (“Users”).
1.2.2. With respect to Transport Requestors, Users may include doctors, nurses, caregivers, and administrators employed by or affiliated with the Transport Requestor.
1.2.3. With respect to Transport Providers, Users may include dispatchers, drivers, and other employees or agents of the Transport Provider.
1.2.4. Licensee is responsible for the acts and omissions of its Users and will cause each User to comply with this Agreement.
1.3. Transport Requests. Licensees that are Transport Providers may only receive and process requests from Transport Requestors that have been identified and assigned to the Transport Provider pursuant to Medlert’s registration process.
1.4. Restricted Activities. Licensee agrees that it will not (and will not permit any User or third party to): (i) interfere with, disrupt, alter, translate, or modify the App or any related service or any part thereof, or create an undue burden on Medlert Connect (e.g., by requesting unnecessary transports); (ii) reverse engineer the App for any purpose, or access the App in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics, or (c) copy any ideas, features, functions or graphics of the App; (iii) introduce software or automated agents or scripts to interfere with or obtain data from the App; or (iv) perform or publish any performance or benchmark tests or analyses relating to Medlert Connect or the use thereof, unless otherwise approved by Medlert. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Licensee, Users or any third party regarding the App.
- 2. Obligations and Functionality
2.1. General. Medlert will make available Medlert Connect for the purposes contemplated under this Agreement. During the Term, Medlert will maintain and support the Medlert Connect App in accordance with its then current standard practices and policies. Licensee and its Users will only access and use Medlert Connect as contemplated under this Agreement and in accordance with Medlert’s policies and then current documentation made available in connection with Medlert Connect.
2.2. Monitoring. Medlert may monitor use of Medlert Connect (i) for quality assurance purposes and to improve Medlert products and services, and (ii) to verify compliance with this Agreement. Licensee shall not interfere with such monitoring or otherwise obscure from Medlert any use of Medlert Connect.
2.3. Upgrades. Medlert may modify or update the App for any reason at any time. If Medlert in its discretion chooses to cease providing the current version of the App, Medlert will use commercially reasonable efforts to continue to operate the noncurrent version of the App and to respond to problems with the noncurrent version of the App deemed by Medlert in its discretion to be critical, each for a reasonable period of time after discontinuance of such noncurrent version.
2.4. General Prohibitions. Licensee will not, and will not permit, encourage or create functionality for Users or other third parties to:
2.4.1. Interfere or attempt to interfere in any manner with the proper workings of the App, or create or distribute any application or product that adversely affects the functionality or performance of the App or Medlert’s other products or services;
2.4.2. Use any means, including but not limited to script or programming, to scrape or mine the data or other content associated with the App or Medlert’s other services or products;
2.4.3. Use the App for any purpose not expressly permitted under this Agreement or that violates any law or regulation or interferes with public safety;
2.4.4. Utilize the App in association with, or as a component of, any product or service that in the sole discretion of Medlert is illegal, obscene or otherwise inappropriate;
2.4.5. Use, collect, upload, transmit, display or distribute the App or any data relating to the App (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable, (c) that is harmful to minors or the elderly in any way, (d) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party, or (e) that contains any malicious code.
- 3. Fees
3.1. Transport Requestors. Medlert does NOT charge Transport Requestors for use of Medlert Connect.
3.2. Transport Providers.
3.2.1. Transport Providers will be provided a free 30 day trial subscription to Medlert Connect.
3.2.2. To continue using Medlert Connect after the trial subscription period ends, Transport Providers must provide Medlert valid credit card information (e.g., Visa, MasterCard, or any other issuer accepted by us). Transport Provider’s credit card agreement governs its use of the designated credit card or account. By providing Medlert with a credit card information, Transport Provider agrees that Medlert is authorized to invoice and charge Transport Provider’s account for all fees and charges due and payable to Medlert and that no additional notice or consent is required.
3.2.3. After the trial period, Transport Providers will be charged in accordance with Medlert’s then current price list based on the number of Transport Requestors it is authorized to receive requests from through Medlert Connect.
3.2.4. Charges will apply regardless of the number of actual transport requests that occur through Medlert Connect. Except as expressly provided otherwise, charges are non-refundable and will not be prorated for any partial periods.
3.2.5. A Transport Provider must cancel at least 3 days before the end of the free trial subscription period (or upcoming renewal subscription period, as the case may be) to avoid charges for the following period.
3.2.6. Amounts payable to Medlert under this Agreement are exclusive of any transaction taxes (including sales, use, consumption, value-added and similar transaction based taxes) which may be imposed, in accordance with applicable laws, in connection with such fees. Transport Provider agrees to bear or reimburse Medlert for all such transaction taxes.
- 4. Further Legal Provisions
4.1. Compliance with Laws; HIPAA.
4.1.1. In connection with the use of Medlert Connect, Licensee and Users shall comply with all applicable laws, rules, and regulations, and the rights of third parties.
4.1.2. Medlert has designed Medlert Connect to support compliance with the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act and the regulations promulgated under these statutes, including without limitation, the privacy and security regulations (45 C.F.R. 160 and 164) and the transaction and code set regulations (45 C.F.R. 162) (collectively, “HIPAA”), as applicable to Medlert Connect. Medlert and Licensee hereby agree to the form business associate agreement identified during the Medlert registration process (or otherwise negotiated and agreed to by the parties) (in either case, the “BAA”). The BAA is hereby incorporated by reference into this Agreement, and any breach of the BAA is subject to this Agreement.
4.2. No Implied Rights. Except as expressly provided otherwise, neither party grants the other party any intellectual property rights or other proprietary rights. As between Licensee, Users, and Medlert, Medlert and its applicable licensors retain all intellectual property rights (including all patent, trademark, copyright, trade secret, and other proprietary rights) in and to Medlert Connect and any improvements, enhancements, or customizations thereto, any related documentation, and all other Medlert products and services in connection therewith. All license rights granted herein are not sublicensable, transferable, or assignable unless otherwise stated herein or with the express written permission of Medlert.
4.3. Feedback. Licensee and each User hereby assigns to Medlert all rights, title and interest, including, without limitation, all property rights in any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements related to Medlert Connect that Licensee, User or any of their representatives provide, propose, create, conceive, author or develop. Licensee (and each User) will execute and deliver (or cause its representatives to execute and deliver) to Medlert any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Medlert’s rights described above and the intent of this Section.
4.4. Publicity. Licensee agrees that Medlert may use its name and/or logo in presentations, marketing materials, customer lists, financial reports, website listings of customers, research and marketing case studies, and other marketing-related activities. Licensee may not issue any public announcement regarding its use of Medlert Connect that suggests partnership with Medlert without Medlert's prior review and written approval, at Medlert's sole discretion.
4.5.1. Scope. Licensee acknowledges that Medlert Connect and related documentation is proprietary and may contain valuable trade secrets of Medlert. Medlert Connect and all of the programming code, logic, and algorithms relating to it shall be deemed “Confidential Information” of Medlert without any need for marking as “confidential” or “proprietary”. In addition, other information and materials a party discloses or provides to the other will be deemed “Confidential Information” of the disclosing party if marked as “confidential” or “proprietary,” should have been reasonably understood to be confidential or proprietary, or applicable law requires such information to be confidential.
4.5.2. Protection and Exceptions. Each party agrees to protect the Confidential Information of the other party as set forth below. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose the Confidential Information to third parties nor use the Confidential Information for any purpose other than as permitted in this Agreement. Such restrictions shall not apply to Confidential Information which is (a) already known by the public at time of disclosure, (b) becomes, through no act or fault of the receiving party, publicly known, (c) received by either party from a third party without a restriction on disclosure or use, (d) independently developed by a party without reference to the Confidential Information of the other party, or (e) required to be disclosed by any court of competent jurisdiction or as otherwise required by law. Notwithstanding anything to the contrary, Medlert may aggregate data and statistics relating to the use of Medlert Connect and has sole and exclusive rights, title, and interest in and to such aggregated data and statistics.
4.5.3. Return of Confidential Material. Upon expiration or termination of this Agreement, each party shall return all Confidential Information received from the other party except to the extent that such Confidential Information is required to exercise that party’s rights under this Agreement.
4.5.4. Confidentiality of the Terms of this Agreement. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement shall be treated as Confidential Information and shall not be disclosed to any third party without the other party’s prior approval, which shall not be unreasonably withheld. However, Medlert may disclose this Agreement to any prospective acquirer of Medlert or a financing source.
- 5. Indemnification
5.1. Indemnification by Medlert. Medlert agrees to defend Licensee against any claims brought by a third party and indemnify Licensee from and against any damages, liability or other expenses (including but not limited to reasonable attorneys’ fees and court costs) that result from such claims alleging infringement of any U.S. patent, U.S. copyright, U.S. trade secret, or U.S. trademark rights based solely on Licensee’s access or use of Medlert Connect pursuant to the terms of this Agreement; provided, however, that such indemnification shall not apply to any claims that arise out of or result from any claim based upon: (a) modifications made by any person or entity other than Medlert or its authorized representatives or requested by Licensee; (b) any combination of Medlert Connect with logos, products or services of Licensee or any third party; or (c) use of the Medlert Connect other than as permitted under this Agreement or in a manner for which it was not intended (collectively, the “Exceptions”).
5.2. Indemnification by Licensee. Licensee agrees to defend Medlert against any claim brought by a third party and indemnify Medlert from and against any damages, liability or other expenses (including but not limited to reasonable attorney’s fees and court costs) relating to (a) the Exceptions, (b) the relationship(s) between Transport Requestor, Transport Provider, and their patients or customers, including without limitation, any failure or delay of the Transport Provider to provide transport or other services or care, the failure of any Transport Requestor to pay for services, or other transport related claims, or (c) the use of Medlert Connect or any reliance on Medlert Connect, including without limitation any personal injury or death resulting from Medlert Connect or its errors or unavailability, unless such claim is subject to infringement indemnification by Medlert under Section 6.1 above.
5.3. Indemnity Conditions. Each party’s obligations under this Section 5 is subject to the following conditions and obligations: (a) a party seeking indemnification (the “Indemnitee”) agrees to notify the indemnifying party (the “Indemnitor”) by certified mail, return receipt requested promptly upon knowledge of any claim for which it may be entitled to indemnification under this Agreement; (b) the Indemnitee permits the Indemnitor to have the sole right to control the defense of any such lawsuit to the extent that it relates to the subject matter of the indemnity; (c) the Indemnitee provides reasonable assistance to the Indemnitor, at the Indemnitor’s expense, in the defense of the same; and (d) the Indemnitee does not enter into any settlement agreement or otherwise settle any such lawsuit, to the extent that it relates to the subject matter of the indemnity, without Indemnitor’s express prior consent or request.
5.4. Exclusive Remedy. If Medlert Connect or any part thereof becomes the subject of a claim for infringement, Medlert shall have the right, at its option, to exercise commercially reasonable efforts to: (a) replace the Medlert Connect with a non-infringing alternative that is functionally equivalent or superior; (b) modify the Medlert Connect so that it becomes non-infringing without materially affecting its functionality; or (c) obtain a license to such rights under commercially reasonable terms as may be required to make the Medlert Connect non-infringing. None of the alternatives specified in (a), (b) or (c) above are in Medlert’s reasonable opinion commercially reasonable, then Licensee shall discontinue the alleged infringing activity, return (or destroy) all copies of the Medlert Connect, and cease accessing and using the Medlert Connect. SECTION 5.1 (“INDEMNIFICATION BY MEDLERT”) AND SECTION 5.4 (“EXCLUSIVE REMEDY”) STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF MEDLERT, AND THE SOLE AND EXCLUSIVE REMEDY OF LICENSEE, UNDER THIS AGREEMENT, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
- 6. Representations and Warranties.
6.1. Power and Authority; No Conflicts. Each party to this Agreement represents and warrants that it has the full right, power and authority to enter into this Agreement and to discharge its obligations hereunder. Each party further represents and warrants that neither the execution, delivery and performance of this Agreement by such party nor the consummation by such party of the transactions contemplated hereby will conflict with, or result in a breach of, any of the terms, conditions or provisions of such party’s Articles of Incorporation, Bylaws, or any agreement to which it is a party.
6.2. Medlert Limited Warranty. MEDLERT HAS USED COMMERCIALLY REASONABLE EFFORTS TO DESIGN MEDLERT CONNECT TO PERFORM SUBSTANIALLY IN ACCORDANCE WITH ITS DOCUMENTATION. In the event of a breach of ANY COVENANT OR warranty OR ANY FAILURE OF MEDLERT CONNECT, Licensee’s sole and exclusive remedy is repair BY MEDLERT of all or any portion of Medlert Connect AND, IF SUCH REPAIR IS NOT COMPLETED IN A COMMERCIALLY REASONABLE PERIOD OF TIME, TERMINATION OF THIS AGREEMENT AND A REFUND OF ANY FEES PRE-PAID TO MEDLERT RELATING TO THE USE OF Medlert Connect.
6.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.2, MEDLERT CONNECT AND MEDLERT’S OTHER PRODUCTS AND SERVICES, IF ANY, ARE PROVIDED “AS IS.” USE OF MEDLERT CONNECT IS SOLELY AT THE LICENSEE’S RISK. OTHER THAN AS EXPRESSLY STATED IN THE ABOVE WARRANTY, NO WARRANTIES ARE MADE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND MEDLERT SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF MEDLERT HAS BEEN INFORMED OF SUCH PURPOSE), OR NONINFRINGEMENT, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND WARRANTIES CONCERNING DATA SECURITY OR SAFETY. MEDLERT DOES NOT WARRANT THAT MEDLERT CONNECT WILL WORK AS INTENDED, BE UNINTERRUPTED, OR BE ERROR FREE NOR THAT PROGRAM ERRORS WILL BE CORRECTED. MEDLERT CONNECT MAY NOT OPERATE IF THERE ARE OUTAGES, CONGESTION, DELAYS, OR ERRORS IN TELECOMUNNICATION SERVICES OR SYSTEMS, LOCATION TRACKING DEVICES, MOBILE DEVICES, OR OTHER RESOURCES OUTSIDE MELDERT’S CONTROL. IN NO EVENT WILL MEDLERT BE LIABLE FOR ANY PERSONAL INJURY OR DEATH ARISING FROM OR IN CONNECTION WITH THE MEDLERT CONNECT, UNLESS SUCH PERSONAL INJURY OR DEATH ARISES FROM MEDLERT’S WILLFUL MISCONDUCT. LICENSEE AND USERS SHOULD USE ALTERNATIVE OR REDUNDANT MEANS OF COMMUNICATION IN EMERGENCIES OR LIFE THREATENING SITUATIONS.
- 7. Limitation of Liability.
7.1. In no event will EITHER PARTY be liable for any indirect, incidental, special exemplary or consequential damages of any kind or nature whatsoever OR ANY DAMAGES RELATING TO PERSONAL INJURY OR DEATH OR COST OF COVER UNDER OR IN CONNECTION WITH THIS AGREEMENT (OR THE BAA), Medlert Connect, OR ANY SERVICE OR PRODUCT PROVIDED UNDER THIS AGREEMENT. each Party’s aggregate liability under this agreement (AND THE BAA) shall be limited to the lowER of: (a) actual direct damages incurred by the injured Party TO THIS AGREEMENT; OR (b) the GREATER OF THE total amount paid by Licensee to Medlert under this agreement during the SIX (6) month period immediately preceding THE LAST EVENT GIVING RISE TO A CLAIM OR $50.
7.2. The FOREGONG LIMITATIONS OF LIABILITY IN SECTION 8.1 WILL NOT APPLY WITH RESPECT TO INDEMNIFICATION OBLIGATIONS, INFRINGEMENT OF INTELLECTUAL PROPERTY, BREACHES OF SECTIONS 1.4 (License Restrictions), 2.4 (Prohibitions), 4.5 (CONFIDENTIALITY), OR NON-PAYMENT OF FEES TO MEDLERT.
7.3. LICENSEE AND MEDLERT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR MEDLERT CONNECT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHER THAN CAUSES OF ACTION RELATING TO MEDLERT’S INTELLECTUAL PROPERTY. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
7.4. Licensee acknowledges and agrees that these limitations are an essential basis of the bargain between the parties, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
- 8. Term and Termination.
8.1. Transport Requestors. If Licensee is a Transport Requestor, then (i) this Agreement shall continue for so long as Licensee continues to use Medlert Connect, unless earlier terminated, and (ii) Licensee may terminate at any time upon notice.
8.2. Transport Providers. If Licensee is a Transport Provider, then (i) this Agreement shall continue until Licensee cancels its subscription to Medlert Connect pursuant to the lead times required under Section 3.2, unless earlier terminated in accordance with this Agreement.
8.3. Additional Termination Rights.
8.3.1. Either party may terminate this Agreement or suspend its performance under this Agreement at any time upon notice to the other party if the other party breaches any material term hereof and fails to cure such breach in accordance with the following cure procedure. If a party wishes to terminate this Agreement due to the other party breaching a material term of this Agreement, then the nonbreaching party shall serve written notice on the other party specifying the breach and requiring it to be rectified. If the material breach has not been remedied within thirty (30) days of the original notice of default or such other period as may be agreed, then the notifying party will have the right to terminate this Agreement by a further written notice, with immediate effect.
8.3.2. Medlert may terminate or suspend performance if Licensee is past due on any fees due under this Agreement, unless Licensee cures such default within three (3) days notice.
8.3.3. Medlert may also decommission Medlert Connect and terminate at any time upon thirty (30) days notice.
8.4. Effect of Termination. Except as set forth below, on any expiration or termination of this Agreement, all of Medlert’s obligations and Licensee’s rights automatically terminate. The termination or expiration of this Agreement shall not relieve Licensee of any of its obligations under any of the surviving provisions of this Agreement, including without limitation Licensee’s obligation to pay Medlert any sums accrued prior to such termination or expiration.
8.5. Survival of Certain Terms. The provisions of Sections 1.4, 2.4, 4.5, 5, 6.3, 7, 8, 9 and 10 of this Agreement shall survive the expiration or termination of this Agreement.
- 9. APP STORES And Third Party Software
9.1. App Stores. If the App is downloaded or installed from any third party application store or marketplace (e.g., the Apple App Store) (each, an “App Store”), Licensee agrees to comply with all applicable third party terms of the relevant App Store (e.g., “Usage Rules”) when using Medlert Connect. Licensee further acknowledges that this Agreement is between Licensee and Medlert and not with the App Store. The App Store is not responsible for Medlert Connect (including any maintenance, support, and warranty relating thereto) or addressing any claims relating to Medlert Connect (e.g., product liability, legal compliance, or intellectual property infringement). To the maximum extent permitted by applicable law, the App Store will not have any warranty obligation whatsoever with respect to the Medlert Connect. As between Medlert and the App Store, any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Medlert. Licensee agrees to pay all fees, if any, charged by the App Store in connection with Medlert Connect. All warranty disclaimers and limitations of remedy and liability benefiting Medlert shall benefit the App Store under this Agreement. Licensee also acknowledges that the App Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement, including with respect to such disclaimers and limitations.
9.2. Third Party Code. Medlert Connect may be delivered with certain items of independent, third-party code that are licensed under separate terms provided by the authors or licensors (“Third Party Code”). This Third Party Code is licensed under the terms of the license that accompanies such Third Party Code, if any. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for any Third Party Code delivered with Medlert Connect. Notwithstanding any contrary provisions in this Agreement, for Third Party Code licensed under the LGPL, if applicable, you may modify only the portions of the Software that are linked with such Third Party Code solely for your own use, and reverse engineer the software solely to the limited extent necessary for debugging such modifications. Medlert documentation will include further information on any such Third Party Code as and if required.
- 10. Miscellaneous.
10.1. Force Majeure. Neither party to this Agreement will be liable for failure to perform any of its obligations hereunder (other than a payment obligation) during any period in which such performance is delayed by acts, omissions, or circumstances beyond its reasonable control. Either party shall have the right to terminate this Agreement upon thirty (30) days prior written notice if a force majeure event prevents or hinders performance for more than thirty (30) days.
10.2. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of laws principles. The parties agree to submit to the exclusive venue and jurisdiction of the state and federal courts in such state.
10.3.1. Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Medlert may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that re applicable to your use of Medlert Connect.
10.3.2. Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the “Rules”) and shall be administered by the San Francisco, California office of JAMS (the “Administrator”). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be San Francisco, California, USA. The Dispute(s) shall be submitted to a single arbitrator (“Arbitrator”) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 7 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
10.3.3. By using Medlert Connect in any manner, you agree to the above arbitration provision. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Medlert (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
10.4. Severability. If any one or more provisions of this Agreement shall be held to be illegal, invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force to the extent the economic benefit conferred upon the parties by this Agreement remain substantially unimpaired. If severability of any such provision would materially change the economic benefit of this Agreement to either party, the parties shall modify such provision to obtain a legal, enforceable, and valid provision.
10.5. Amendment. This Agreement may be amended or supplemented only by a writing that refers specifically to this Agreement and is signed by duly authorized representatives of both parties.
10.6. Waiver. Except as otherwise provided in this Agreement, any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party entitled to the benefit thereof only by a written instrument signed by the party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, representation, warranty, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
10.7. Notices. All notices required to be sent by either party under this Agreement shall be deemed given: (a) when sent by facsimile, telecopy, or email with a confirmation of receipt; (b) upon delivery by a commercial overnight courier with written verification of receipt; or (c) when received after being mailed postage prepaid by certified or registered mail, return receipt requested (unless received outside 9:00 a.m. to 5:00 p.m. on a business day, in which case receipt will be deemed to have occurred at 9:00 a.m. on the next business day), to the party to be notified at the respective addresses set forth below in the signature block or such other address designated by a party.
10.8. Independent Contractors.
10.8.1. Nothing contained herein, or done in pursuance of this Agreement, shall constitute the parties entering into a joint venture or partnership, or shall constitute either party the agent for the other for any purpose or in any sense whatsoever. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
10.8.2. Licensee acknowledges and agrees that Transport Providers and Transport Requestors are not affiliated by or screened by Medlert. Medlert bears no responsibility for their acts or omissions. Transport Providers and Transport Requestors are solely responsible for entering into any agreements they deem appropriate with respect to their relationship and invoicing, paying and collecting fees in connection with such relationship.
10.9. Successors and Assigns. This Agreement and the rights and obligations arising hereunder shall be binding upon and inure to the benefit of the parties and to their respective successors and assigns. Licensee shall not assign any of its rights or obligations hereunder, whether voluntarily or by operation of law, (including, without limitation, mergers or an assignment of substantially all of Licensee’s assets) without the prior written consent of Medlert, which consent shall not be unreasonably withheld or delayed. Any such unauthorized assignment shall be null and void.
10.10. Construction. This Agreement will be construed simply according to its fair meaning and not strictly for or against any party. The titles and headings herein are for reference purposes only and will not in any manner limit the construction of this Agreement.
10.11. Non-Solicitation. During the term of this Agreement and for twelve (12) months thereafter, Licensee shall not, directly or indirectly, solicit for employment (other than by general advertising or similar means), employ, or otherwise retain or contract with, any employee or contractor of Medlert.
10.12. Export. Medlert Connect and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Medlert, or any products utilizing such data, in violation of the United States export laws or regulations. Licensee represents and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties. Licensee will indemnify and hold Medlert harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of its obligations under this section.
10.13. Restricted Rights. The App is deemed to be “commercial computer software” and “commercial computer software documentation” as defined in DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the App by any governmental entity shall be solely in accordance with the terms of this Agreement.
10.14. Electronic Communication. Each party hereby agrees to the use of electronic communications in order to enter into this Agreement, to create other records, and to the electronic delivery of notices, documents, policies and records of transactions with respect to Medlert Connect and this Agreement. Each party hereby waives any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
10.15. Entire Agreement. This Agreement (including its attachments, all of which are incorporated herein by reference) constitutes the entire agreement between the parties and supersedes any prior, collateral or contemporaneous negotiations, representations and agreements, oral or written agreement, between the parties with respect to the subject matter hereof. All conditions, warranties and other terms implied by statute or common law are excluded to the fullest extent permitted by applicable law.
Form Business Associate Agreement
To be sent separately.