Medmo Terms of Use
Index
1. Introductory Termsa. Parties and Languageb. Binding Agreementc. Revisions to Terms and Conditions2. Pricinga. Pricing for Accepted Service Bookingsb. Cancellation and Refund Policy3. Name4. Non-Circumvention/Interference5. Program Promotion6. Acknowledgements and Disclaimers7. Qualifications; Malpractice8. Term and Termination9. Independent Contractors10. Data11. Limitation of Liability12. Confidentiality13. Program Ownership14. Costs of Connectivity; Downtime15. Assignment16. Duly Authorized17. Governing Law; Venue18. Attorneys’ Fees19. Miscellaneous1. Introductory Terms
A. Parties and Language
Welcome to Medmo.com. Please read these Terms and Conditions carefully before using this website and associated mobile application (each and collectively, referred to as the “App”). As used in these Terms and Conditions, “Medmo” includes Medmo, Inc. and all of its parent, subsidiary and affiliated entities and companies. Medmo may be referred to in these Terms and Conditions as “we,” “us,” “our” and “ourselves.” The radiology providers subscribing to and otherwise using the App are also referred to herein as “you” and the like. The references to “end-user participant” herein, as then applicable, means patient users (including self-pay), their employers, self-funded health benefit plans/programs, unions, discount medical plan organizations and other third parties which contract with us to seek services for and on behalf of themselves and their employees/clients/members/owners (and otherwise) from our online network of subscriber radiology providers (including you) participating in the App, and their respective parents, subsidiaries, affiliates (by common ownership to any extent, or control of or participation in the entity’s governing body) as well as their agents handling their participation in the App (e.g., without limitation, third party administrators). References to “including” mean “including, without limitation” unless otherwise expressly stated. The headings used herein are for convenience of reference only and do not define or limit the interpretation of any provisions hereof. References to “program” herein also mean the “App”. “Agreement” means these App Terms and Conditions.
B. Binding Agreement
This is an agreement between radiology providers and us (i.e., a legally binding contract). By signing up/registering for the App and continuing to use our App, you accept these terms and conditions of participation. It may change as our business changes, and you agree you will review it and any updates regularly. Your continued use of the App (including to review and accept bookings) means you accept any changes, even if you terminate this Agreement by formal notice but subsequently re-install/re-register or otherwise review and accept bookings (in which latter event this Agreement will become effective again). As such, by installing, visiting, registering for, accessing, and/or otherwise using our App at any time you accept, without limitation or qualification, the following Terms and Conditions, which together constitute an Agreement between you and Medmo. If you do not agree to these Terms and Conditions, you must not access or use the App.
C. Revisions to Terms and Conditions
We reserve the right, at our sole discretion, to change the provisions of these Terms and Conditions from time to time, and your continuing use of our App thereafter constitutes your acceptance of and agreement to any changed terms and conditions. We may revise these Terms and Conditions at any time by posting an updated version or posting notices in or otherwise sending messages to your App account. You should visit this page periodically to review the most current Terms and Conditions, because you are bound by them. Your continued use of the App after a change to these Terms and Conditions constitutes your binding acceptance of the updated Terms and Conditions.
2. Pricing
A. Pricing for Accepted Service Bookings
i. Once you book an imaging test, our technology generates a service agreement which you agree to automatically as part of accepting the booking, the terms of which supplement these Terms and Conditions. Payments from end-user participants are in two (2) parts: (i) your price for your booked service (Service Charge), which may be either a direct payment or submission of a claim to a health insurer, and (ii) our fee (if any) to the end-user participant for their use of this App (Convenience Charge).
ii. You will hold the end-user participant harmless from and against any attempt (successful or otherwise) by a third party source to collect any excess amounts resulting in additional payment obligations by the end-user participant beyond the total Service Charge accepted by you (Note: This does not apply to amounts owed Medmo by the end-user participant).
iii. There will be no hidden fees or surprise charges from you beyond such Service Charge payment entitlement. The first (1st) copy of the imaging/test is included in and deemed a part of the Service Charge you accept from the end-user participant. You may charge the patient additional copying charges in excess of the first copy, consistent with applicable law and regulation.
iv. The Service Charge accepted by you further includes a professional interpretation (read) for each rendered service. As such, you are solely responsible for ensuring a read is conducted by a qualified provider and are solely responsible to the reading provider for any payment they require for such service.
v. If your imaging center publicizes self-pay rates, you cannot charge the end-user participant a higher rate through the Medmo platform.
vi. The manner of determining fees due to us by end-user participants and to you, respectively, are at all times subject to change by us prior to your booking a service. However, we may modify fee structuring owed to you by end-user participants for subsequent bookings (and those owed to us by you in accordance with the cancellation and refund policies below) only upon 30 days’ advance written notice to you (by posting same in your account or other such messaging to you through the App, or otherwise by e-mail to you), in which event you can immediately terminate this Agreement through portal mechanisms we provide or by e-mailing us at info@medmo.com without incurring any additional charges; provided, however, that any continued use of the App including acceptance of bookings thereafter will constitute your acceptance of such new fee (and cancellation and refund policy) structure and further authorize us to apply payments to, charge and collect from your account (including through the online merchant services we arrange for with you including any associated credit card and bank account linked thereto).
vii. Please note that your Service Charge may further be subject to an expiration date prior to which the service must be rendered, which will be reflected in the price lock-in agreement.
viii. IF YOU RENDER SERVICES TO A PATIENT THAT WISHES TO SUBMIT A CLAIM TO AN INSURER, YOU REPRESENT, WARRANT, AND CONVENANT THAT YOU ARE “IN-NETWORK” WITH THAT INSURER. IF YOU ARE LOCKING IN A PRIVATE PAY PRICE RATE FOR THE SERVICE, YOU REPRESENT, WARRANT AND COVENANT THAT YOU WILL NOT SUBMIT ANY BILLS OR CLAIMS FOR PAYMENT OR REIMBURSEMENT TO ANY PRIVATE OR GOVERNMENTAL PAYOR OR CARRIER FOR THE SERVICE RENDERED THROUGH THE USE OF OUR APP.
ix. Please further note, however, that such Service Charge you charge to and accept from end-user participants using the App will be offset (i.e., reduced) by any interest, offsets, fees or charges you pay to any credit card merchant, company or vendor used to engage in the processing of payment for transactions herein. You cannot additionally charge the end-user participant to make up for such offset. Medmo disclaims all liability with regards to any fees or problems you have with third-party payment processors including, without limitation, online merchant services. You agree to accept and comply with all terms and conditions required by such third party online merchant vendor.
x. You acknowledge and agree that you are solely responsible for ensuring payment of all applicable sales and other taxes to governmental authorities and are not entitled to charge or collect any additional amounts from us or end-user participants on top of the stated rates herein.
B. Cancellation and Refund Policy
i. End-user participants and and practitioners may terminate a service at any time, subject to cancellation and refund policies and deemed incorporated herein.
ii. Such cancellation and refund policies are at all times subject to change by us prior to your acceptance of a booking, with such updated cancellation and refund policies being further reflected in the subsequent price lock-in agreement generated through your use of the App.
iii. If you accept and cancel bookings on an excessive basis as we determine in our sole discretion without regard to our treatment of other subscribers, then we reserve the right to immediately terminate your participation in the program.
3. Name
We shall at all times during the term of your participation and thereafter retain the sole and exclusive ownership of and rights to the name “MEDMO” and all associated intellectual property (whether or not registered with any governmental authority) and any and all derivations and extensions thereof (“Name”). Upon termination, you will no longer claim any association or affiliation with such program. You will never use the Name or any name or phrase confusingly similar for your own purposes outside of this Agreement, including following termination.
4. Non-Circumvention/Interference
All services hereunder to and on behalf of end-user participants using our program for bookings accepted by you shall be scheduled via us on our website/app only, and paid only via our website/app using the credit card merchant services we select and arrange for. You will never willfully interfere with our relationships with end-user participants, including following termination of your participation. You will further not assist any third party in doing so, including following termination of your participation. This paragraph shall continue in effect during the term of your participation and survive for a twenty-four (24) month period following termination of your participation.
5. Program Promotion
You hereby authorize us to promote you as we then-desire to end-user participants throughout the course of your participation in the App. We may in the future list and promote your participation in any publication, media or medium (including by press release). Termination will not affect any materials already published.
6. Acknowledgements and Disclaimers
We are an online directory service and technology platform. We will not be performing any claims adjustment services, auditing the performance or quality of services or the appropriateness or correctness of any charges. We will not be handling any disputes with any end-user participants, whether regarding payment or otherwise. You are solely responsible for resolution of any disputes including those relating to the provision of care and refunds as applicable, and you will cause us to be able to issue refunds and reimbursements owed by you hereunder using the associated merchant account we link to your bank or other source of funds. Accordingly, you will indemnify, defend and hold us harmless from and against any claims, actions, and liabilities associated with your provision of services and payment refunds and disputes, including for costs and reasonable attorneys’ fees incurred. You will notify us in the event of any complaint, allegation, action or dispute with any end-user participant, along with a detailed description and copy thereof (including any material correspondence or filed actions). You hereby expressly acknowledge and agree that we are: (i) a technology development and website company; (ii) not an insurance company, benefit plan or third party administrator and are not determining any end-user participant’s eligibility to receive benefits under any third party payor program or plan; and (iii) for purposes of the Employee Retirement Income Security Act of 1974 (“ERISA”) or any equivalent or similar other state or federal laws/regulations that may be applicable, we shall not be deemed the “administrator” or “named fiduciary” of any benefit program or plan. You hereby waive (and shall have no cause of action, at law or in equity, against us) and release us, our owners, employees, agents, members, managers, officers, directors, affiliates, parents, subsidiaries and successors from any claims, demands, obligations, liabilities, and causes of action of every nature whatsoever, relating to, arising out of, or resulting from the enforcement of and compliance with ERISA and such other like laws and regulations, as well as resulting from any failure to comply with private insurance carrier, Medicare or other federal or state healthcare benefit program private contracting or opt-out requirements by you. We do not warrant that our agreements we generate using the App or with patients comply with governmental benefit program or private insurance carrier opt-out or private contracting requirements. You hereby acknowledge and agree that we make no guarantees or representations, implied or express, regarding the promotion, selection or use of you by end-user participants, or that end-user participants will submit booking requests in your area at any given time. We shall have no liability to you if they choose not to use you. It is expressly acknowledged and agreed that we do not exercise any control with respect to any end-user participant’s assets, policies, practices, procedures or payment of amounts owed to you by them.
7. Qualifications; Malpractice
You represent and warrant that you and all personnel rendering and supervising services on your behalf hereunder (including, without limitation, technicians and reading physicians) are fully qualified, credentialed, registered and otherwise licensed to render all services agreed upon herein for the respective end-user participant. You further represent and warrant that you and your professionally licensed personnel rendering and supervising services hereunder shall at all times maintain malpractice coverage with minimum levels of $1million per occurrence/$3million in the aggregate covering all services rendered hereunder.
8. Term and Termination
The term of this Agreement begins at the time you accept this Agreement by signing below (or, if online, clicking “accept” or similar mechanism) and will continue for a period of one (1) year. Thereafter, it will automatically renew for successive additional terms of one (1) year each, under the current terms and conditions in effect at that time (and you will be apprised of any modifications by us by e-mail to your primary account address or through an online notice mechanism in your portal), unless this Agreement is terminated earlier as set forth below. You may also cancel your participation in the App at any time by notifying us at info@medmo.com. We may terminate this Agreement (and, accordingly, your participation) at any time for any or no reason. All provisions hereof which reasonably should survive in order to be effectual shall be deemed to survive the cessation of your participation in the App.
9. Independent Contractors
We are independent contracting parties. Each party shall be solely responsible for its (including its owners’, employees’, agents’ and affiliates’) own acts and omissions and breach of this Agreement (including any adverse change in any representation and/or warranty hereunder and its own compliance with applicable law, regulation and third party payor (private and governmental) requirements as applicable to it.
10. Data
You acknowledge that we retain independent possession and ownership of, and may share with other persons and entities the data and information from utilization of the program (including any patient information which is de-identified if required under HIPAA as then-applicable) (e.g., including, without limitation, for statistical purposes, data aggregation, research study, analysis, warehousing, sale or otherwise). This Section 10 shall survive termination of this Agreement.
11. Limitation of Liability
IN NO EVENT SHALL WE BE LIABLE TO YOU FOR LOSS OF GOODWILL, OR FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE APP, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT OR IN CONTRACT. WE FURTHER SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF THE AMOUNTS ACTUALLY PAID TO US BY YOU OVER THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE OF THE VIOLATION GIVING RISE TO THE LIABILITY. WE ARE NEVER LIABLE TO YOU FOR ANY INTEREST, OFFSETS, FEES OR CHARGES YOU PAY TO ANY CREDIT CARD MERCHANT, COMPANY OR VENDOR WE USE TO ENGAGE IN THE PROCESSING OF PAYMENT FOR TRANSACTIONS HEREIN. WE ARE NEVER LIABLE FOR ANY DISPUTES OR CANCELLED PAYMENTS INSTITUTED AGAINST YOU BY PATIENT USERS. YOU WILL LOOK SOLELY TO SUCH PATIENTS AND THEIR CREDIT CARD COMPANY TO RESOLVE ANY SUCH DISPUTES. MEDMO HAS NO RESPONSIBILITY WHATSOEVER FOR ANY CLAIMS AGAINST OR ADVERSE EFFECT ON YOU OR YOUR PROFESSIONALS UNDER THIS PRIVATE PAY ARRANGEMENT. YOU MAY NOT ASSERT ANY CLAIM AGAINST US RELATED TO THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER SUCH CLAIM ACCRUED. This Section 11 shall survive termination of this Agreement.
12. Confidentiality
The parties covenant and agree that all information which is of a confidential or proprietary nature, whether disclosed orally or in writing (and whether or not marked confidential) (“Confidential Information”), are confidential trade secrets and proprietary information of, and are of great value to, the respective parties. This confidential and proprietary information includes, without limitation, that concerning or relating to know-how, trade secrets, protocols, procedures, forms, marketing, lists, reports, information concerning the other’s and its clients’/licensees’ business, practice, costs, fees, agreements, financial arrangements, business plans, surveys, professional relationships and arrangements, and information concerning operations, strategy and financial condition (including books and records), and further with respect to us, our program including its functionality. At all times during the term of this Agreement (except as necessary to fulfill its obligations hereunder and render services hereunder) and following its expiration or termination for any reason, the parties agree not to disclose to any third parties any Confidential Information of the other or any affiliate, without the other’s express prior written consent in each instance. The parties shall at all times (a) use due care to protect all Confidential Information against public disclosure, and (b) shall disclose Confidential Information only to those who need to know such Confidential Information for the purposes of its business and practice hereunder. Notwithstanding the forgoing, a party shall not have any obligation with respect to any information which is generally available to the public (through no fault of a party) or any Confidential Information that a party is legally obligated to disclose to a third party; provided that prior to making any such legally required disclosure, you shall give us prompt written notice, and to the extent the disclosure is legally mandated, limit the extent of the disclosure to the minimum amount necessary to comply with the legal requirements. Information shall be deemed publicly available if it becomes a matter of public knowledge, is in the public domain, is contained in materials available to the public or is obtained by a party from any source other than the other party (or the other party’s agents or outside advisors), provided that such source is not, to the knowledge of such party, bound by a confidentiality agreement with the other party with respect to such information.
13. Program Ownership
You acknowledge that our program whether or not marked as “confidential” is special and unique proprietary assets and trade secrets of ours (individually and collectively, part of the “Confidential Information” proprietary to us). You agree that at all times during the term of this Agreement and following its termination that you will not, either directly or indirectly, disclose, share, use, reproduce, derive materials from, reverse engineer or in any manner divulge to any person or entity, any such Confidential Information, except for purposes of use of the program for the purposes intended (though patient information for patients treated by you shall also belong to you). This Agreement merely constitutes a revocable non-exclusive and non-transferable license to use and participate in the program on the terms and conditions herein. The license granted does not include any right to use the program for purposes other than for use by those individuals authorized by you under this Agreement with respect to services rendered by you or to copy, reproduce, sell, assign, transfer, lease, sublease or sublicense the program for any purpose or to any third party, in whole or in part. The above license rights granted will not affect the exclusive ownership of the program by us. If you devise any revisions, enhancements, or improvements in the program, you will promptly disclose such improvements to us, and such improvements will be our sole property, and you will have no rights whatsoever in same. You will cause each authorized user accessing the program to abide by the terms and conditions of this Agreement as if each were a party hereto. This Section 13 and Section 12 above shall survive termination of this Agreement.
14. Costs of Connectivity; Downtime
You are solely responsible, at your own cost and expense, for acquiring, installing and maintaining any connectivity equipment, hardware, software and other equipment as may be necessary for you and your authorized users to connect to and use the program functionality or receive the information derived therefrom. We will make commercially reasonable efforts to restore functionality when down time is caused by us, and the Agreement remains subject to the termination rights herein without fee abatement or other offset, refund or penalty. Our sole responsibility for any allegation of infringement of a third party’s intellectual property shall be to replace the functionality with equivalent functionality so long as we desire to continue to offer such functionality, and this Agreement remains subject to your termination rights herein.
15. Assignment
We may assign this Agreement to any successor to our business or assets to which this Agreement relates. You may not assign this Agreement to a third party.
16. Duly Authorized
Each party represents and warrants that it is duly authorized and has full power, capacity and authority to enter into and accept this Agreement on behalf of such party, and the individual accepting on behalf of such party is fully authorized to bind such party to same.
17. Governing Law; Venue
The laws of the State of New York, excluding its conflicts of law rules, govern these Terms and Conditions and your use of the App. Your use of the App may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods will not apply to any provision of these Terms and Conditions. To the extent that any action relating to any dispute hereunder is brought in a court of law, it will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York (other than actions for equitable relief and associated legal remedies which Medmo may bring in any venue and jurisdiction as necessary to enforce same) and you hereby irrevocably submit to personal jurisdiction, and waive any defense of inconvenient forum. This website and its contents are intended to comply with the laws and regulations of the United States. Although the information on this website is accessible to users outside of the United States, the information on the website pertaining to Medmo information, services and products or other products is intended for use only by residents of the United States. Other countries may have laws, rules and regulatory requirements that differ from those in the United States. Medmo makes no representation that materials on its website are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this website from other locations do so on their own initiative and are responsible for compliance with local laws. Medmo reserves the right to limit provision of our products or services to any person, entity, geographic region or jurisdiction and/or to limit the quantities of any products or services we provide. Any offer for any product or service made on this website is void where prohibited.
18. Attorneys’ Fees
The substantially prevailing party in any action or proceeding arising hereunder shall be entitled to reimbursement of costs incurred and reasonable attorneys’ fees.
19. Miscellaneous
If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held to be legally invalid, inoperative or unenforceable, the remainder of this Agreement shall not be affected unless the invalid provision substantially impairs the benefits of the remaining portions of this Agreement to the other party. Any consent or waiver executed in writing by a party shall be binding upon such party from and after the date of execution thereof unless a later or earlier date is specified therein. Any delay or failure to exercise any remedy or right under this Agreement (whether a default exists or not) shall not be construed as a waiver of such remedy or right, or an acquiescence in such default, nor shall it affect any subsequent default of the same or a different nature. Headings in this Agreement are for convenience of reference only. This Agreement will not be construed against either party as “drafter”.
1. Parties; Program
Reference to “we”, “us”, “our” or the like is deemed to include MEDMO, INC. and its affiliates, parents, subsidiaries, successors and assigns. Reference to “you”, “your” or the like is for all purposes deemed to include the individual who accepts these Terms and Conditions as well as his/her entity and all individuals in his/her/its practice that are authorized by you to use this website/app (also referred to herein as the “service(s)”, “app” or “Program”). The individual accepting these terms and conditions represents and warrants that he/she has the power and authority to bind the practice and all associated users to these Terms and Conditions. DO NOT USE THIS SERVICE IF YOU DO NOT AGREE TO THESE TERMS. YOUR USE OF THE SERVICE CONSTITUTES YOUR ACKNOWLEDGEMENT OF AND AGREEMENT TO THESE TERMS. The term “Program” includes our website(s) including Medmo.com (and any additional and successor websites), software applications (mobile and Internet-based), instructions, materials (whether housed online, on a server/cloud or downloadable), content, layout, tables, templates, report formats, forms, data, databases and any service, product or functionality we offer, as well as all associated intellectual property including trademarks, patents and copyrights, all now or hereafter existing. References to “including” means “including but not limited to” and “including without limitation”. In the absence of a specified term, this Agreement is deemed to remain in effect for one year, with automatic renewal for successive one year periods.
2. Independent Contractors; Compliance with Law
We are independent contracting parties. Each party shall be solely responsible for its (including its owners’, employees’, agents’ and affiliates’) own acts and omissions (including in rendering any telehealth/telemedicine services via the Program) and breach of this Agreement (including any adverse change in any representation and/or warranty hereunder and compliance with Applicable Law, as defined below), and, to the extent not covered by insurance proceeds from any source, you shall indemnify and hold us (including our owners, managers, employees, agents, affiliates/parents/subsidiaries, assignees and successors) harmless from and against all allegations, investigations, audits, claims, actions, proceedings, costs, penalties, fines, losses and liabilities associated with the foregoing, your provision of services, practice, operations and business and your covenants and obligations herein, including your breach hereof, adverse changes in any representations and warranties hereunder and all other acts and omissions of yours (with “yours” for the avoidance of doubt including your owners, employees, agents and affiliates/parents/subsidiaries) including reasonable attorneys’ fees, including following termination. You will be solely responsible for licensure/permits/registration and the conduct of your business, services and practice as required by all applicable Federal and State laws, rules, regulations and third party payor (private and governmental) requirements, including, without limitation, HIPAA and state privacy and patient disclosure laws and corresponding regulations (collectively, such laws, rules regulations and payor requirements are referred to herein as “Applicable Law”) and are further solely responsible for verifying the accuracy of information provided by you, patients and imaging centers including via our Program and violation of Applicable Law by you. You assume the sole risk and liability for privacy breaches associated with your violation of Applicable Law and transmission of information to inaccurate e-mail addresses, users or other third parties, including via the Program. You represent that the execution of this Agreement has been duly authorized (with the accepting individual having the full power and authority to execute this Agreement on behalf of the practice, its owners, employees, agents, affiliates/subsidiaries/parents) and that you are duly organized and a validly existing entity with such licenses, Board certification(s), registration and permits in the states in which you do business and with respect to the state residents you service to assure your compliance with Applicable Law. You are under no contractual or other restriction or obligation which is inconsistent with the execution of this Agreement, the performance of your duties hereunder, or the rights granted to us hereunder. This Section 2 shall survive termination of this Agreement.
3. Termination
This Agreement commences upon acceptance and may be terminated by us at any time upon immediate written notice. It may be terminated by you with a 30 days advance notice by emailing support@medmo.com with your request to terminate. We may store information for your de-activated portal even after termination by either party for so long as required by law/regulation or otherwise permitted by law/regulation.
4. Program Ownership
You acknowledge that our Program whether or not marked as “confidential” is special and unique proprietary assets and trade secrets of ours (further constituting our “Confidential Information” proprietary to us). You agree that at all times during the term of this Agreement and following its termination that you will not, either directly or indirectly, disclose, share, use, reproduce, derive materials from, reverse engineer or in any manner divulge to any person or entity, any such Confidential Information, except for purposes of use of the Program for the purposes intended (though patient information for patients treated by you shall also belong to you). This Agreement merely constitutes a revocable non-exclusive and non-transferable license to use the Program on the terms and conditions herein. The license granted does not include any right to use the Program for purposes (other than for use by those individuals authorized by you under this Agreement with respect to services rendered by you) or to copy, reproduce, sell, assign, transfer, lease, sublease or sublicense the Program for any purpose or to any third party, in whole or in part. The above license rights granted will not affect the exclusive ownership of the Program by us. If you devise any revisions, enhancements, or improvements in the Program, you will promptly disclose such improvements to us, and such improvements will be our sole property, and you will have no rights whatsoever in same. You will cause each authorized user accessing the Program to abide by the terms and conditions of this Agreement as if each were a party hereto. Our sole responsibility for any allegation of infringement of a third party’s intellectual property shall be to replace the functionality with equivalent functionality so long as we desire to continue to offer such functionality for all such similarly situated users, and this Agreement remains subject to your termination rights herein. This Section 4 shall survive termination of this Agreement.
5. Costs of Connectivity; Downtime
You are solely responsible, at your own cost and expense, for acquiring, installing and maintaining any connectivity equipment, hardware, software and other equipment as may be necessary for you and your authorized users to connect to and use the Program functionality or receive the information derived therefrom. We will make commercially reasonable efforts to restore functionality when down time is caused by us, and the Agreement remains subject to the termination rights herein without penalty to us.
6. Data
You acknowledge that we retain independent possession and ownership of, and may share with other persons and entities the data and information from utilization of the Program (including any patient information which is de-identified if required under HIPAA as then-applicable) (e.g., including, without limitation, for statistical purposes, data aggregation, research study, analysis, warehousing, sale or otherwise). This Section 6 shall survive termination of this Agreement.
7. NO WARRANTY
MARKETING, ADVERTISING AND PROMOTIONAL OR SALES MATERIALS OR COMMUNICATIONS OF ANY NATURE DO NOT CONSTITUTE ANY REPRESENTATION OR WARRANTY AND ARE NOT INCORPORATED INTO THIS AGREEMENT, AND YOU WILL NOT RELY ON SAME. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE UNDERTAKE NO OBLIGATION TO VERIFY DATA/INFORMATION PROVIDED BY THIRD PARTIES OR TO PROVIDE ERROR-FREE OR FAULT-FREE PROGRAM(S), WEBSITE/APP ACTIVITY OR AVAILABILITY, DATA, REPORTS, RECORDS, INFORMATION, ITEMS, SUPPLIES OR EQUIPMENT. ALL PROGRAMS, SUPPLIES, ITEMS, SERVICES AND EQUIPMENT PROVIDED OR ARRANGED FOR BY US ARE PROVIDED “AS IS”. WE DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO ANY DATA, INFORMATION, REPORTS, PROGRAMS, SUPPLIES, EQUIPMENT, SERVICES OR ITEMS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, TITLE, DESIGN, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM, OR USAGE IN TRADE. This Section 7 shall survive termination of this Agreement.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, INCURRED BY YOU OR YOUR OWNERS, EMPLOYEES, AFFILIATES/PARENTS/SUBSIDIARIES, AGENTS OR SUCCESSORS, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. ADDITIONALLY, IF THE LIMITATION OF LIABILTY IS NOT RECOGNIZED BY A COURT OR OTHER GOVERNING AUTHORITY, THEN IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES IN AN AMOUNT MORE THAN THE AMOUNT ACTUALLY PAID BY YOU TO US, IF ANY, OVER THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING NOTICE OF THE BREACH. THE FOREGOING LIMITATIONS OF THIS SECTION WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. This Section 8 shall survive termination of this Agreement.
9. Non-Disparagement
At all times during the term of this Agreement and following its expiration or termination for any reason, you agree to not, directly or indirectly, in public or private, whether in oral, written, electronic or other format, disparage, deprecate, impugn or otherwise make any statements or remarks that would tend to or be construed to defame or slander the personal or professional reputations, professional qualifications, services, website/app, Program, functionality and/or business of ours, including of our owner(s), parents, subsidiaries, affiliates and/or its/his/her/their owners, independent contractors, employees, agents, affiliates, subsidiaries, parents and/or successors, nor shall you in any manner assist or encourage any third party in doing so. This shall not prohibit the making of claims and the enforcement of rights and remedies arising under this Agreement, testifying truthfully under oath, nor shall it or any other provision in this Agreement prohibit or preclude cooperation with investigations or inquiries by governmental authorities. This Section 9 shall survive termination of this Agreement.
10. Name and Likeness
Except for purposes of listing your practice and/or practitioners in any directory we may establish including for purposes of telehealth/telemedicine, for purposes of displaying a profile of you for purposes of telehealth/telemedicine, for our marketing purposes (including materials containing lists of participants or former participants, and issuance of a press release(s) concerning your participation) or otherwise as expressly permitted of us herein, neither party shall otherwise use, reproduce, license, sell or otherwise make available, the (i) name, (ii) photos, (iii) logos, or (iv) intellectual property of the other party (e.g., copyright, trademark, service-mark, or other proprietary items) without such party’s prior written consent. You agree that we may issue announcements, publications and press releases indicating your participation in our Program.
11. Remedies
In the event of a breach or threatened breach of any of the covenants herein, in addition to any other rights or remedies which the party may have at law and in equity which shall be cumulative and not alternative, such party shall further be entitled to such equitable and injunctive relief (including a temporary and permanent injunction, without the requirement of the posting of a bond) as may be available from a court of competent jurisdiction to restrain the other party (and their respective owners, affiliates and successors) from any violation or continued violation of such covenant. The affected party shall not, as a result of the time involved in obtaining such relief, be deprived of the benefit of the full period of the covenant. Accordingly, the covenant shall be deemed to have the duration specified herein, computed from the date the relief is granted, but reduced by the time between the period when the covenant began to run and the date of the first violation of the covenant. If any restriction or any other provision contained in this Agreement shall be deemed to be invalid, illegal or unenforceable by reason of the extent, duration or scope thereof, or otherwise, then the court making such determination shall reduce such extent, duration, scope or other provision hereof, and in its reduced form, such restriction or provision shall then be enforceable in the manner contemplated hereby. This Section 11 shall survive termination of this Agreement.
12. Telemedicine
If you participate in our telehealth/telemedicine facilitation program as ever offered, which may include such functionality as we establish from time to time (e.g., without limitation, ordering, referral and information/record/imaging result sharing and other communication services) will be scheduled through our Program and promptly attended to when scheduled. You are solely and exclusively responsible for your clinical judgment, medical decision making, ordering and referrals, reports, actions, conduct and advice in rendering such services. You are further solely responsible for your compliance with all Applicable Law governing the conduct of and billing of and/or submission of claims for payment or reimbursement for telehealth/telemedicine. AS SUCH REQUIREMENTS ARE EVER-CHANGING AND BEING NEWLY IMPLEMENTED, YOU ASSUME THE SOLE RISK AS TO WHETHER YOUR USE OF OUR PROGRAM
13. Prior Authorization
Medmo’s third party imaging subscribers may offer prior authorization services to Medmo users. “Prior authorization” means obtaining approval from payors before performing services as a condition of coverage. MEDMO IS MERELY A TECHNOLOGICAL FACILITATION PLATFORM AND IS NOT INVOLVED IN OR RESPONSIBLE FOR OBTAINING PRIOR AUTHORIZATIONS OR VERIFYING ANY INFORMATION RELATING THERETO AND DOES NOT PROVIDE ANY PROMISE OR GUARANTY OF ACTUAL COVERAGE BY A PAYOR OR CARRIER. Medmo’s third party imaging subscribers retain the right to terminate these services at any time for any reason without notice. Medmo’s third party imaging subscribers are relying on the information provided by the patient and ordering provider, including you, and do not represent that they will verify the accuracy, current nature or completeness of the information. You are solely responsible for medical necessity for any patient order. Medmo makes no representation or warranty that the information submitted will not be corrupted or lost. Medmo and the third party imaging subscribers will not be liable for damages of any nature attributable to participation in the third party imaging subscriber’s prior authorization services or the results thereof, including with respect to any failure to obtain reimbursement from and/or refunds or offsets by carriers/payors, or costs associated therewith. You acknowledge that prior authorizations are not a guarantee of verification of patient eligibility or payment under the applicable payor plan. Payors retain the right to review the medical necessity of services and eligibility for services including exclusions and benefit limitations even after a patient receives the services. Participants including you assume the sole and absolute risk of participation including of any liability to carriers/payors and patients. You will look solely to the patient and carrier/payor for ultimate payment/reimbursement including with respect to any dispute regarding payment and/or care, and will be solely responsible for having patients sign any necessary agreements allowing for subscriber to enforce same against such third party. IN NO EVENT SHALL MEDMO BE LIABLE TO YOU FOR LOSS OF GOODWILL, OR FOR DIRECT, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS PRIOR AUTHORIZATION PROGRAM, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT OR IN CONTRACT. This limitation of liability will survive termination of your participation in the prior authorization program, termination of your participation in Medmo and termination of this Agreement.
14. Miscellaneous
We may amend or supplement this agreement at any time, and you may be required to accept or otherwise acknowledge your agreement to the changes in order to maintain your access to our Program. If you fail to acknowledge your acceptance of any such change as required by us then your access will expire immediately or at any time thereafter at our option. Notices hereunder may be given by notification on the website/app/Program, by text message to the registered mobile phone user, by e-mail to the registered contact of the party, or by e-mail to us at support@medmo.com. The Agreement is not assignable by you without our written consent, though we may delegate our rights and obligations and assign this Agreement to any transferee, assignee or successor to our business or assets to which this Agreement relates. If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held to be legally invalid, inoperative or unenforceable, the remainder of this Agreement shall not be affected unless the invalid provision substantially impairs the benefits of the remaining portions of this Agreement to the other party. Any consent or waiver executed in writing by a party shall be binding upon such party from and after the date of execution thereof unless a later or earlier date is specified therein. Any delay or failure to exercise any remedy or right under this Agreement (whether a default exists or not) shall not be construed as a waiver of such remedy or right, or an acquiescence in such default, nor shall it affect any subsequent default of the same or a different nature. Any reference to termination herein shall similarly apply to expiration, non-renewal or cancellation of an account or access. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement is governed by the laws of the State of New York without reference to its conflicts of law provisions. Each party hereby agrees and consents that any legal action or proceedings with respect to this Agreement shall only be brought in the courts of the State of New York in New York City County except that we may bring or remove an action to any other venue and jurisdiction in order to enforce the covenants herein. By execution and delivery of this Agreement, each such party hereby (i) accepts the jurisdiction of the aforesaid courts; (ii) waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the venue set forth above; and (iii) further waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party hereby acknowledges personal jurisdiction in New York for purposes hereof. Notwithstanding any other rights a party may have under law or equity, any cause of action you may have arising out of or related to this Agreement must commence within one (1) year after the cause of action arises. Otherwise, the cause in of action is permanently barred. THE PARTIES WAIVE THE RIGHT TO TRIAL BY JURY. In the event that any party brings litigation at law or in equity arising out of this Agreement, if we are the substantially prevailing party, then we shall be entitled to all expenses incurred, including but not limited to, reasonable attorneys’ fees all collection, court and other costs incurred in and leading up to such proceeding, and the costs of collection on any judgment. Any provision of this Agreement which by its express terms or by reasonable implication must survive expiration or termination in order to be effectuated shall so survive expiration or termination.