THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU ACCEPT A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
I. Definitions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Authorized User” means an individual who is authorized by You to use the Services, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Authorized Users may include, for example, Your employees, consultants, contractors and agents.
“Beta Services” means Our services that are not generally available to Our customers.
“End User” means an individual whose device contacts Your RepeatMD platform. End Users may include, for example, individuals who enter Your establishment with their phone or tablets and those who log onto the platform.
“End User Data” means the electronic data and information (in any format or media) entered, submitted by or otherwise made accessible to Us by an End User or an End User’s device that is collected and processed by Us in connection with provision of the Services. For the avoidance of doubt, Your Data does not include any Public Data.
“Licensee” means the entity listed in the Order as a licensee.
“Licensee Locations” means that business locations that will be provided the Services per the Services Order Form.
“Order” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto.
“Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third party.
“Patient” means the third party that is referred by Us to You for services provided by You.
“Personal Information” means information provided by an End User that does or can identify a specific natural person or by or from which a specific natural person may be identified, contacted, or located.
“Platform Administrator” means the party that Approved the Purchased Services, or the party that signed the Services Order Form.
“Public Data” shall mean data (in any format or media) that is generally available and in the public domain (through no act or omission of a party), and that is not proprietary to, or subject to exclusive ownership by, any party.
“Purchased Services” means Services that You purchase pursuant to an Order, as distinguished from those provided pursuant to a Trial Subscription.
“Services” means the products and services that are ordered by You under a Trial Subscription or an Order and made available online by Us, including associated offline components.
“Subscription Period” means the period from the Effective Date through the Subscription Expiration, as set forth in the Order.
“Trial Subscription” means products and services provided to You by Us on a free trial basis.
“Launch Date” means the first day of platform usage to start the free trial bases or billing period.
“Training Call” Where we train the client or clients team on how to use the platform. At this stage, the client platform is fully built and ready to use.
“You” , “Your” or “Client” means the Licensee.
“Your Data” means electronic data and information submitted by or for You to the Services or collected and processed by or for You using the Services.
“RepeatMD,” “We,” “Us” “Provider” or “Our” means RepeatMD, Inc., a Texas Corporation.
“RepeatMD Privacy Policy” means the privacy policy for RepeatMD available at https://www.repeatmd.com/privacy-policy.
“Repeat MD Business Associate Addendum” means the Business Associate Addendum for Repeat MD available at https://www.repeatmd.com/business-associates-addendum.
“Platform Buildout Cost” means the amount paid by the Licensee to RepeatMD to build your RepeatMD Platform.
I. Our Responsibilities.
Provision of Purchased Services. “RepeatMD Services” is a B2B software company that specializes in creating mobile rewards programs for the healthcare industry. RepeatMD’s software provides a suite of patient engagement offerings that includes rewarding a patient for visiting, educating patients on treatments, driving more referrals, financing treatments, and automating patient retention. Provider’s web app creates a personalized message to the guests on the Client’s website but operates entirely behind the scenes. Client and Provider desire to enter into this Agreement to set forth certain standard terms and conditions which will apply to RepeatMD Services provided by Provider for Client, (a) use commercially reasonable efforts to make the Services available to You pursuant to this Agreement and the applicable Order, subject to reasonable downtime for maintenance of Our products and services, and (b) provide support for registration/onboarding to the Services, and (c) provide launch materials such as email and social media templates.
Protection of Your Data. You are responsible for ensuring that You disclose, provide and otherwise make available to Us and our vendors, contractors, and employees any and all protected health information (as defined under HIPAA) (“PHI”) and other Personal Information (including as part of Your Data) in compliance with any and all applicable laws, regulation, rules, orders, decrees, mandates and resolutions regarding the collection, maintenance, use, processing, disclosure, privacy and/or security of Personal Information and/or PHI. You acknowledge and agree that it You are responsible for complying with all applicable local, state and federal laws and regulations in connection with Your activities related to this Agreement. You, hereby authorize Us to share Your Data, including any PHI and Personal Information contained therein, with any of Our vendors, subcontractors, contractors, or employees to carry out its duties in this Agreement in accordance with applicable law. However, no amount of safeguards, protection or security may be 100% secure and You acknowledge Your Data and End User Data may be compromised. You agree to hold Us harmless of any claims relating to loss or damages resulting from any data breach or loss of protection of Your Data and/or End User Data.
Privacy Policy. The provision of Services is subject to Repeat MD’s Privacy Policy and by agreeing to this Agreement you are also agreeing to the Repeat MD Privacy Policy.
Business Associate Addendum. If You are a covered entity under HIPAA, the Repeat MD Business Associate Addendum is incorporated into this Agreement and the Parties agree to abide by the terms set forth therein. If You are not a covered entity under HIPAA, the Repeat MD Business Associate Addendum is not incorporated into this Agreement and therefore the terms therein will not be applicable to the Parties.
II. Use of Services.
Subscriptions. Except for Trial Subscriptions, and unless otherwise provided in the applicable Order, (a) Services are purchased as subscriptions, (b) additional subscriptions may be added during a subscription term at the same pricing set forth in the Subscription Terms in the Order, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions, as set forth in the Order.
End User Privacy. In connection with the Services, We may collect End User Data or other information about or related to End Users, and We may share certain data regarding End Users with You. You represent and warrant that You will (a) use the End User Data or any derivatives thereof in accordance with all applicable laws, including privacy, data protection, and data security laws, and (b) upon request, You will direct any End User to the full text of the then-current Portal Privacy Policy. You understand that (1) the Portal Privacy Policy may be revised periodically by Us and (2) You are responsible for reviewing the Portal Privacy Policy to check for changes. You acknowledge and agree that You will comply in all respects with the then-current Portal Privacy Policy, and that You are solely responsible for any noncompliance with Your obligations in the Portal Privacy Policy.
End User Terms of Use. Upon request, You agree to direct any End User to the full text of the then-current Portal Terms of Use. You understand that (a) the Portal Terms of Use may be revised periodically by Us; (b) You are responsible for reviewing the Portal of Use to check for changes; and (c) You agree to abide by the terms of the then-current Portal Terms of Use.
Usage Restrictions. You acknowledge and agree that We have no obligation to monitor or police the content of communications or data of You or End Users, and that We are not responsible for the content of any such communications or transmissions. You will not (a) make the Services available to, or use the Services for the benefit of, anyone other than You or Your Authorized Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering, (c) store or transmit infringing, libelous, or otherwise unlawful or tortious material through the Services, (d) store or transmit material in violation of third-party intellectual property, proprietary, privacy, or similar rights through the Services, (e) store or transmit malicious code through the Services, (f) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (g) attempt to gain unauthorized access to the Services or their related systems or networks, (h) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, (i) copy the Services or any part, feature, function or user interface thereof, (j) frame or mirror any part of the Services, other than framing on Your own intranets or otherwise for Your own internal business purposes, (k) access the Services in order to build a competitive product or service, (l) reverse engineer the Services or any part thereof, (m) modify, translate, or otherwise create derivative works of the Services; (n) allow the removal, alteration, covering, or obscuring of any RepeatMD Trademarks or Servicemark that appear on the Services, or (o) promote, market, or sell any products or services that are competitive with the Services (p) use the Services at any business locations other than the Licensee Locations.
Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and reserve the right to never make them generally available. We will have no liability for any harm or damage arising out of or in connection with the Beta Services, and You accept all risk associated with use of the Beta Services.
III. Fees and Payment for Purchased Services.
Fees. You agree to pay all fees specified in an Order for the entire Subscription Period specified in the Order, and any additional Services obtained through renewals, along with applicable transaction fees, inclusive of the RepeatMD Shop fee of 2.5% per transaction and standard Credit Card Processing fees.
Payment Method. To make use of the Services, you must provide one or more of the Payment Methods. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, We may at Our sole discretion, suspend or terminate Your access to the Services. In addition, in the event of non-payment, You may forfeit any marketplace revenue generated by Your use of the Services.
Invoicing and Payment. We will collect the patient subscription amounts and deduct our fee as outlined in Section 3.1 or any amendments thereto, before forwarding payment to you for the Patient subscription. You shall be paid the fifteenth (15th) of the following month the subscription fee is collected by Us. You acknowledge and agree that this payment to You will be the amount the patient is charged for the subscription less our percentage fee as outlined in Section 3.1 or any amendments thereto.
Text Messages. Standard rates apply of $0.05 per promo text message, unless otherwise indicated in Services Order Form, sent out per month. Text message fees will be charged on monthly invoice. You fully authorize Us to send out text messages automatically for any promotions.
Launch Date. Will automatically be set at “14” calendar days after “Discovery Call” or the first day users start signing up for the Client’s platform, whichever comes sooner.
Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 3.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
Price Increases. We reserve the right to increase the monthly subscription cost given a 30-day notice.
IV. Proprietary Rights and Licenses.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our right, title and interest in and to the Services, including all of Our related intellectual property rights. Our intellectual property rights include, without limitation, all rights associated with the Services and the Beta Services, and the online, web-based applications and platform provided by Us. No rights are granted to You hereunder other than as expressly set forth herein.
License by You to Host Your Data. You grant Us and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display Your Data and End User Data created by or for You using the Services, as necessary for Us to provide the Services in accordance with this Agreement. In addition, You grant Us a perpetual, irrevocable right to maintain, access, and use Your Data and End User Data in order to improve Our services and in accordance with the RepeatMD Privacy Policy, which may be updated from time to time. It is Your obligation to review the RepeatMD Privacy Policy from time to time to check for changes. All updates to the RepeatMD Privacy Policy will be effective on the date they are posted without prior notice to You. Without limiting the foregoing, We may (i) disclose Your Data and End User Data to Our service providers to process and supplement End User Data for the purpose of providing the Services in accordance with this Agreement, (ii) use or disclose End User Data to help our clients learn more about their current and prospective customers, and to assist them in communications and marketing activities; and/or (iii) use or disclose without restriction End User Data that has been de-identified or aggregated for any purpose.
Limits on Your Use and Disclosure of End User Data. End User Data for purposes of competing against Us such as by establishing a competing business venture. In the event you do so, you explicitly waive Section 10 and Section 11 in this agreement and personally consent to jurisdiction of and venue in the State or Federal Courts of Harris County, Texas. Additionally, you acknowledge that a breach of this Section would damage RepeatMD in a way that could not be adequately compensated by monetary damages and therefore agree that any breach or threatened breach of this Section may appropriately be restrained by an injunctive order granted by a court of competent jurisdiction. Upon agreement you may be able to receive your customer list including cell phone numbers and other platform data given our “release of data” is signed. We will not use any End User Data for any other purposes than your specific promotional platform unless agreed upon by both parties first.
License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Authorized Users or End Users relating to the operation of the Services.
License by You to Disclose Business Relationship. You grant to Us and Our Affiliates a worldwide, royalty-free license to use any of Your trademarks, brand names, and/or logos for the limited purpose of disclosing that RepeatMD provides services to You including any marketing materials such as print, media, public relations, and advertising. The license set forth in this Section 4.5 shall be valid only during the period of time in which RepeatMD provides Services to You and shall expire at the termination of this Agreement.
Remedies for Infringement Claims Related to the Services. If We receive information about an infringement or misappropriation claim related to the Services, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under Section 6.2 (Our Warranties), (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your subscriptions for the Services upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. Notwithstanding any contrary provision in this Agreement, if We provide any of the remedies set forth in this Section 4.6, You agree that such action satisfies Our obligations under this Agreement, and You are not eligible for further relief.
V. Confidentiality.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as otherwise specifically provided in this Agreement, Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, business processes, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind of nature, plans for future development and new product concepts, contemplated products, research, development, and strategies disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who rightfully possess the information without confidential or proprietary restrictions, or (iv) was independently developed by the Receiving Party.
Protection of Confidential Information. Except as otherwise specifically provided in this Agreement, each Party covenants and agrees that it will not publish, communicate, divulge, or disclose to any person, firm, or corporation any Confidential Information of any other Party, except as necessary in the performance of the terms of this Agreement. Each Party covenants and agrees that it will not use any Confidential Information of any other Party except as necessary to fulfill its obligations or exercise its rights under this Agreement, and only for such purposes and only for the time that it is necessary to do so. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, service providers and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the Party that disclosed the Confidential Information to the third party. Neither party will disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 5.2.
Compelled Disclosure. In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of the other Party, it is agreed that the Receiving Party will provide the Disclosing Party with prompt written notice of such request(s) to enable the Disclosing Party, at its sole cost and expense, to seek a protective order or take other lawful steps to protect and preserve the confidential nature of the Confidential Information, and the Receiving Party will cooperate with such efforts by the Disclosing Party, including by delaying the disclosure to the extent lawfully permitted to do so to permit the Disclosing Party the opportunity to engage in such efforts. Each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each Party shall immediately notify the other upon discovery of any loss or unauthorized disclosure or other processing of the Confidential Information of the other Party. The Parties agree that to the extent any of their respective regulators have the right to examine the relationship between the Parties described in this Agreement, along with the records associated with such relationship, subject to any privacy requirements applicable to either Party or its Affiliates, or to the individual customers of either Party, the Parties shall (i) provide advance notice of such examination; and (ii) cooperate with each other in making relevant records available.
Return or Destruction. As requested by the Disclosing Party during the Term, upon expiration or any termination of this Agreement, or completion of the obligations of the Receiving Party, as applicable, the Receiving Party shall (a) return or destroy, as the Disclosing Party may direct, and in the manner reasonably directed by the Disclosing Party, all material in any medium that contains, refers to, or relates to the Disclosing Party’s Confidential Information, and (b) retain no copies except one copy solely to the extent, if any, required compliance with record retention requirements under applicable law; provided, however, that no Party will be obligated to erase Confidential Information subject to a license granted herein or contained in an archived computer system backup made in accordance with such Party’s security and/or disaster recovery procedures, provided that such archived copy will (a) eventually be erased or destroyed in the ordinary course of such Party’s data processing procedures and (b) will remain fully subject to the obligations of confidentiality and security stated herein.
Misuse. In the event of any actual or suspected misuse, disclosure or loss of, or inability to account for, any Confidential Information of the Disclosing Party, the Receiving Party promptly shall (a) (and in any event within three business days) notify the Disclosing Party upon becoming aware thereof; (b) furnish to the Disclosing Party full details of the unauthorized possession, use or knowledge, or attempt thereof, and use reasonable efforts to assist the Disclosing Party in investigating or preventing the reoccurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information; (c) take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the violation; and (d) cooperate in all reasonable respects with the Disclosing Party to minimize the violation and any damage resulting therefrom. In the event the RepeatMD deems it necessary to protect its Confidential Information, you explicitly waive the Mediation, Arbitration and Class Waiver Section in this agreement and personally consent to jurisdiction of and venue in the State or Federal Courts of Harris County, Texas. Additionally, you acknowledge that a breach of this Section would damage RepeatMD in a way that could not be adequately compensated by monetary damages and therefore agree that any breach or threatened breach of this Section may appropriately be restrained by an injunctive order granted by a court of competent jurisdiction.
VI. Representations, Warranties, Exclusive Remedies and Disclaimers.
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
You warrant that (a) at all times during the term of this Agreement, You shall comply with all applicable federal, state, and local laws, and the terms of this Agreement and (b) Your use of the Services or execution of this Agreement does not and will not conflict with Your obligations to any third parties.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; CLAIM OF INFRINGEMENT; OR CLAIM IN TORT (WHETHER BASED ON NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR OTHER THEORY). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES.
VII. Indemnification.
You will defend Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, against any claim, demand, suit or proceeding made or brought against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, by a third party alleging that Your Services provided to anyone referred to by Us, Your care to any patient that subscribed to your services and care through Us, patient data that You accessed from a referral by Us, Your Data, or Your breach of this Agreement, Your or any of Your subcontractor’s access, use, storage, or processing of any PHI or Personal Information or any actual or reasonably suspected unauthorized access to or disclosure, loss or use of, PHI or Personal Information in Your, an End User’s or a subcontractor’s possession or control or arising from Your, an End User’s or a subcontractor’s access or use, or any conduct arising out of Your breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, from any damages, attorney fees and costs finally awarded against Us, our agents, employees, officers, attorneys, shareholders, members, and partners, as a result of, or for any amounts paid by Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, under a court-approved settlement of, a Claim Against Us, provided We promptly give You written notice of the Claim Against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, (provided that failure to so notify will not remove Your obligation except to the extent You are materially prejudiced thereby). For a Claim Against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, We control the defense and settlement of the Claim Against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, and You agree to give Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, all reasonable assistance, at Your expense. You will not settle, compromise, or otherwise enter into any agreement regarding the disposition of any Claim Against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, without the prior written consent and approval of Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, unless such settlement (a) is solely for a cash payment, (b) requires no admission of liability or wrongdoing on the part of Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, (c) imposes no affirmative obligation on Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, (d) imposes no restriction on Our business, (e) provides that the parties to such settlement shall keep the terms of the settlement confidential, and (f) provides for a full and complete release of Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners. You shall reimburse Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, upon demand for any losses incurred by Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, that is subject to an indemnification obligation as set forth in this Section 7.2.
Exclusive Remedy. This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 7.
VIII. Limitation of Liability.
Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY LICENSEE HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT APPLY TO: (A) LICENSEE’S RECKLESS OR NEGLIGENT ACTS OR OMISSIONS; (B) LICENSEE’S PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES AND PAYMENT FOR PURCHASED SERVICES); (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (D) EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5; OR (E) EITHER PARTY’S LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY.
Exclusion of Consequential and Related Damages. EXCEPT FOR (A) LICENSEE’S RECKLESS OR NEGLIGENT ACTS OF OMISSIONS; (B) LICENSEE’S PAYMENT OBLIGATIONS UNDER SECTION 3; (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (D) EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5; OR (E) EITHER PARTY’S LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY, NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
IX. Term and Termination.
Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated (the “Term”).
Term of Purchased Subscriptions. The Subscription Period shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to the expiring Subscription Period typically (one month or one year). The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless we have given you written notice of a pricing increase at least 30 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
Satisfaction Guarantee. You may terminate this agreement for any reason during the initial 45 days following the effective date of your original services order form.
Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach, including nonpayment, if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination for Cause. If this Agreement is terminated by You in accordance with Section 9.3 (Satisfaction Guarantee) or Section 9.4 (Termination for Cause), We will refund You any prepaid fees covering the remainder of the term of an Order after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 9.4, You will pay any unpaid fees covering the remainder of the term of all Orders. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
Early Termination Fee. If Agreement is terminated for nonpayment or other default before the conclusion of Term, or if you terminate your service for any reason other than in accordance with Section 9.3, you agree to pay us, in addition to all other amounts owed, an Early Termination Fee of your remaining subscription commitments if a yearly contract was signed, unless otherwise stated in your Services Order Form. This is not the case in month-to-month agreements.
Surviving Provisions. The following provisions shall survive termination of this Agreement: Sections 3 (Fees and Payment for Purchased Services), 4 (Proprietary Rights and Licenses), 5 (Confidentiality), 6.4 (Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 9.5 (Refund or Payment upon Termination), 9.6 (Portability and Deletion of Data), 9.7 (Surviving Provisions), 10 (Notices, Governing Law and Jurisdiction), 11 (Mediation, Arbitration and Class Action Waiver), and 12 (General Provisions).
Termination Requests. In order for the Licensee to Cancel Services or prevent renewal after the end of a Subscription Period, the Request for Cancellation of Services must come from an approved “Platform Administrator” in writing 30 days prior to their next Billing Due Date. A Request for Cancellation of Services from any party other than an approved “Platform Administrator” shall not be approved, and attempts will be made by RepeatMD to get in contact with a “Platform Administrator” to approve the request. If no contact is made with a Platform Admin, the Request for Cancellation of Services will not be approved.
X. Notices, Governing Law and Jurisdiction.
Notices. All notices, permissions, approvals, and other communications which are required or permitted under this Agreement shall be in writing and shall be deemed to have been given upon: (i) the day of personal delivery, (ii) the third business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the Licensee Billing Info contact on the Order. All other notices shall be addressed respectively (a) to RepeatMD at the contact information on the Order under Licensor and (b) to You at the contact information on the Order under Licensee.
Governing Law and Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas without regard to its conflict of laws rules. Except for matters which must be arbitrated in accordance with Section 11, the parties specifically consent and agree that the courts of the State of Texas and/or the Federal Courts located in the State of Texas will have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings. Additionally, subject to the limitation of liability set forth in Section 8, the party that loses any such proceeding will pay all costs and expenses incurred by the other party(s) in connection therewith, including all attorneys’ and other professional fees and expenses. Exclusive venue for any litigation shall be in the state courts of Harris County, Texas or in the United States District Court for the Southern District of Texas. The Parties to this agreement waive any personal jurisdiction or venue (including, without limitation, a challenge based on inconvenience) argument or issue with regards to suits in the aforementioned courts and personally consents to the jurisdiction of the aforementioned courts.
XI. Mediation, Arbitration and Class Action Waiver.
PLEASE READ THIS SECTION 11 CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If You have any dispute with Us, You agree that before taking any formal action, You will contact Us at Legal@RepeatMD.com, and provide a brief, written description of the dispute and Your contact information. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with one another, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. If such good faith negotiations cannot resolve the disputewithin thirty (30) days, such dispute shall be submitted to a mutually agreed upon mediator in Houston, Texas. Mediation shall be a condition precedent to either party initiating a lawsuit or arbitration except in the event RepeatMD, Inc. is seeking injunctive relief.
Binding Arbitration. Except for the collection of fees due under this Agreement or any Order(s) as described in Section 3 above or as provided in Section 11.4, if we cannot resolve a dispute informally or through mediation, any dispute will be resolved only by binding arbitration in Houston, Texas, or another location that we have both agreed to, and not in courts of general jurisdiction. The arbitration will be conducted under the rules of JAMS that are in effect at the time the arbitration is initiated (referred to as the “JAMS Rules”) and under the rules set forth in this Agreement. If there is a conflict between JAMS Rules and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to You pursuant to Texas law.
If You decide to initiate arbitration on behalf of the company or legal entity You represent, You will be required to pay the arbitration initiation fee as well as any additional deposit required by JAMS to initiate Your arbitration. You also agree to pay the costs of the arbitration proceeding. Other fees, such as attorney’s fees and expenses of travel to the arbitration, will be paid in accordance with JAMS Rules. To start an arbitration, You or We must do the following things:
Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to Your use of the Services and the interpretation, applicability, enforceability, or formation of this Agreement including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Exceptions. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Further, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction or RepeatMD, Inc. may seek injunctive relief to enforce the terms of this Agreement in a court of competent jurisdiction pursuant to the venue provisions in Section 10.
Class Action Waiver. Both parties agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither You nor We can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other RepeatMD customers, and cannot be used to decide other disputes with other customers.
XII. General Provisions.
Export Compliance. The Services and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Authorized Users to access or use the Services or Content in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
Anti-Corruption. Where anti-corruption laws are applicable, You acknowledge that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@RepeatMD.com.
Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order as defined herein) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order, and (2) this Agreement. Notwithstanding any other provision of this Agreement, in no event shall any terms or conditions in this Agreement or any other document be agreed, accepted, waived or modified via a “Void Contracting Method.” A “Void Contracting Method” is one in which an agreement or acceptance purportedly takes place within or through products or services or an application, website, or portal operated by or for Us through Your action (such as electronic signature, checking a box, or clicking to accept) or inaction, even if You are informed that such action or inaction will constitute agreement or acceptance. Any terms or conditions purportedly accepted or agreed via a Void Contracting Method shall be void and of no legal consequence.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that such party assumes or is otherwise fully bound by all of the obligations of the assigning Party under the Agreement. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The parties expressly waive any claim that either party is a fiduciary to the other party.
Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Construction. This Agreement has been prepared with the participation of each Party and will not be strictly construed against either Party. Each party acknowledges that it has consulted with or had the opportunity to consult with counsel of its choice, and that in executing this Agreement it has not relied upon any statements, representations or agreements other than those expressly contained herein.
No Third-Party Beneficiaries. No End User nor any other third party, other than as expressly set forth in this Agreement, is a third-party beneficiary to this Agreement (except that the specified indemnified parties are third-party beneficiaries of the indemnification and defense provisions).
Force Majeure. If the performance of this Agreement or any obligations hereunder is prevented or interfered with by reason of any force majeure act or condition beyond the reasonable control of a Party hereto, that Party upon giving prompt notice to the other Party shall be excused from such performance during such occurrence.
Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.
Rewards and Benefits. RepeatMD is not responsible for the redemption of any reward or benefit provided by You to the End User. You are solely responsible for the redemption of any offer, reward, or benefit to the End User.
