INTRODUCTION

  1. In these Terms of Use (“Terms”), Modernizing Medicine, Inc. and its affiliates (including Modernizing Medicine Gastroenterology, Inc., Modernizing Medicine Billing Services, LLC, and Modernizing Medicine Retail Solutions, Inc.) will be referred to as “Modernizing Medicine” and terms like “we”, “our”, or “us”.
  2. These Terms govern your access to and use of our products and services that link to or reference, or the terms and conditions for which reference, these Terms (“Services”). The Services include, at the relevant time, all of our:
    1. websites (“Sites”), including modmed.com;
    2. cloud-based or licensed on-premise electronic health records systems, including our Electronic Medical Assistant®, or EMA®, and gGastro® systems, and associated systems such as practice management systems (collectively, “Systems”);
    3. mobile applications (“Apps”), including APPatient™, Pocket Practice, PocketEMA, ModMed Practice Add-On, ModMed Practice Sandbox, gGastroMobile, ModMed Kiosk, gKiosk, gCharge, and the Momentum Users Conference app;
    4. application programing interface (“API”) or other interfaces; and
    5. other products and services, such as:
      1. implementation, training, and other professional services;
      2. data conversion, data extract, and data delivery services and products;
      3. analytics tools and services;
      4. reminder and other text messages;
      5. self-service user portals (e.g., Communities);
      6. knowledge bases and learning systems (e.g., ModMed U and gBus); and
      7. telehealth and related products and services, such as ModMed Telehealth, gTelehealth, virtual check-in, eVisit, asynchronous (store-and-forward) messages (similar to email), and live, real-time video and audio chat; and
      8. patient portals (“Patient Portals”).

    The Services also include everything provided through or as part of the Services, such as all services, software, and Content (as defined below). To be clear, the Services do not include, and Modernizing Medicine does not provide, any healthcare services.

  3. Please read these Terms carefully before you use the Services as they are a legal agreement between Modernizing Medicine and you once they are accepted. Please also review our Privacy Policy to learn about our information collection, use, and privacy practices associated with the Services.
  4. By clicking “I accept” or other similar icon (where applicable), or otherwise by using any of the Services, you accept and agree to be bound by these Terms, including the mandatory arbitration and class action waiver in section 11. If you do not agree with any portion of these Terms, then do not click “I accept” or other similar icon and do not use any Services.
  5. If you are using Services on behalf of another person or an entity, then you: (i) represent and warrant that you are an authorized representative of that person or entity with the authority to bind that person or entity to these Terms and to take the actions contemplated in these Terms, where applicable, including on behalf of others (who may include your employer, employees, clients, patients, contractors, relatives, wards, or principals), and (ii) agree to be bound by these Terms on behalf of that person or entity. References to “you”, “your”, and similar terms refer to both you as an individual and, if applicable, such person or entity.
  6. PLEASE NOTE.As may be described in more detail in these Terms, please note:
    1. Modernizing Medicine does not provide healthcare services. Modernizing Medicine provides Services to help healthcare providers manage their medical practices, which includes Services that permit patients to interact with their providers. The terms for any healthcare services provided by a provider are as separately agreed upon by the provider and the patient. Modernizing Medicine is neither a party to nor bound by any such terms.
    2. Limitations on Liability and Claims. These Terms contain important provisions that limit our liability to you and that govern how claims that you and Modernizing Medicine have against each other may be brought. These provisions will require you to submit claims you have against us to final and binding arbitration and to do so on an individual basis, not as a plaintiff or class member in any purported class or representative action or proceeding.
    3. Transaction Document. You may have signed an Order Form, Agreement, Business Associate Agreement, Statement of Work, or other document with terms and conditions for specified Services (“Transaction Document”). These Terms supplement Transaction Documents.
    4. Service-Specific Terms. These Terms contain general terms that apply to all the Services, as well as certain terms that apply only to particular Services (“Service-Specific Terms”). Some Service-Specific Terms are in Appendix A. We also may present to you or post to our Sites additional Service-Specific Terms through the Services that apply to particular features of the Services. To the extent that these Terms conflict with the Service-Specific Terms, the Service-Specific terms will control with respect to the Services to which they relate.
    5. Changes to these Terms. We may change these Terms at any time. Unless we say otherwise, changes will be effective upon the last updated date at the top of these Terms. Please check these Terms regularly to ensure that you are aware of any changes to these Terms. We may try to notify you of material changes to these Terms, such as by posting a notice directly on the Services, by sending an email notification (if you have provided your email address to us), or by other reasonable methods. In any event, your use of the Services after changes to these Terms means you have accepted the changes. If you do not agree with the changes, immediately stop using the Services.
    6. Practice Terms and Conditions, Privacy Statements. If you are a patient, your Provider or his or her office may have required you to agree to terms and conditions, privacy statements, or other documents. Those are separate from these Terms. These Terms cover any of the Services you or your Provider use, where any terms and conditions, privacy statements, or other documents your Provider or his or her office have presented you address your Provider’s provision of his or her services and his or her office’s use and handling of your data and other information.

TYPES OF USERS; ACCOUNTS

  1. Customers. If you are using the Services as a Modernizing Medicine customer, you are a “Provider” for purposes of these Terms.
  2. Patients of Providers. You must be a patient of a Provider to use certain Services (a “Patient User”).
  3. User Accounts.
    1. You will have to create an account to use certain Services, which will require you to provide a username and password or other information. When you create an account, you must provide us with true, accurate, and complete information and keep that information up to date.
    2. You must:
      1. protect your username and password;
      2. not permit anyone else to use your username and password;
      3. not use anyone else’s username and password;
      4. not try to gain unauthorized access to any other user’s username or password;
      5. notify us immediately if your password is lost or stolen or you become aware of any unauthorized use of your username or password; and
      6. notify us immediately if you become aware of any unauthorized use of the Services or any other breach of security that might affect the Services.
    3. You are fully responsible for any activity under your account. We are not responsible for any loss or damage arising from someone else using your username or password or your failure to comply with these Terms.
    4. If you are a Provider, in order to access some features of the Services, you will have to use a login provided to you by Modernizing Medicine or a user account login provided by your practice administrator.
  4. Children and Minors.
    1. The Services are not intended for or directed to children under 18 years old.
    2. If you are between the ages of 13 and 18, you may still use the Services, but you must have a parent or legal guardian provide valid and verifiable consent to your use of the Service and accept these Terms and any other terms and conditions required by Modernizing Medicine. If we determine that the consent provided is invalid or inadequate, we may suspend or terminate your access to or use of the Services.
    3. If you are under the age of 13, your parent or legal guardian may use the Services on your behalf, but you may not use the Service directly.
    4. If you use the Services as or on behalf of a minor, then “you”, “yours”, and similar terms refer to both: (i) the parent or legal guardian who provides consent to the use of the Services by such minor or uses the Services on behalf of such minor and (ii) the applicable minor.
  5. Communication Preferences.
    1. By creating an account, you also consent to receive electronic communications from Modernizing Medicine (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your account (e.g., payment authorizations, password changes, and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy, saving an electronic copy, or both. We may also send you promotional communications via email or other means, including newsletters, special offers, surveys, and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided in such emails.
    2. Where the Apps allows for the delivery of “push notifications” you may opt out of receiving these notifications by changing the notification settings on your device. By downloading and using our Apps, you may also receive promotional messages, offers, news, and information about Modernizing Medicine or our business partners within the Apps themselves. These “in app” messages are part of our Apps’ functionality and cannot be turned off. If you do not want to receive “in app” messages, offers, news, and information, do not download or use the Apps.

USE OF THE SERVICES

  1. Providers. If you are a Provider:
    1. You and any other professionals treating a patient have the exclusive responsibility for all healthcare services, including any medical decisions or actions with respect to a patient’s medical care, and for determining the accuracy, completeness, or appropriateness of any billing, clinical, coding, diagnostic, medical, or other information provided by the Services or any other products or services provided or made available by Modernizing Medicine. We do not assume any responsibility for how such information is captured, rendered, or used.
    2. You acknowledge and agree that neither the Services nor any other products or services provided by Modernizing Medicine “recommend”, “suggest”, or “advise” diagnoses, proper prescribing, or other treatment decisions.
    3. You will not use the Services to collect, or attempt to collect, personal information about other users of the Services or individuals who are not your patients for use in violation of HIPAA (as defined below) or any other applicable law.
    4. You will comply with all applicable laws, including any and all laws in your relevant states and localities, pertaining to the security, confidentiality, and protection of medical records, personally identifying information, protected health information, and sensitive health information as well as your use of the Services.
  2. Patient Users. If you are a Patient User:
    1. Certain Services may permit you to provide information to, receive information from, and otherwise interact with a Provider. Providers, not Modernizing Medicine, will be solely responsible for any healthcare services, including any care and treatment that is provided or failed to be provided via the Services. Use of the Services, including access to any Content, does not create a provider-patient relationship between you and us.
    2. All Content is for informational purposes only and is not a substitute for the professional judgment of a healthcare provider.
    3. You agree that Modernizing Medicine is not responsible or liable for any loss or damage of any sort incurred as the result of any of your interactions with Providers or other entities or individuals, whether online or offline. Modernizing Medicine is under no obligation to become involved in any dispute between you and any Provider, any other user of the Services, or any other entity or individual, and you indemnify and release the Indemnified Parties (as defined below) from any and all claims, actions, suits, liabilities, demands, losses, and damages (actual or consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or the Service or the features and services in the Services. If you are a California resident, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.”
  3. Obligations. You will:
    1. Use the Services only as expressly authorized in these Terms;
    2. Use the Services only in accordance with all applicable laws;
    3. Exercise caution, discretion, common sense, and judgment in using the Services and when disclosing information on or through the Services. You are solely responsible for your use of the Services;
    4. Not impersonate another person or entity, falsify account information, or use without permission another person’s or entity’s information;
    5. Not interfere with anyone else’s use of the Services;
    6. Not copy, reproduce, sell, license, rent, lease, distribute, display, transfer, modify, or make derivative works from the Services;
    7. Not remove, alter, or tamper with any copyright, trademark, or other proprietary rights or legal notices associated with the Services, including pertaining to Content;
    8. Not decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive any proprietary software code or information associated with the Services;
    9. Not use the Services to build a competitive product or service;
    10. Not submit, upload, post, or transmit any unsolicited advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, phishing, or any other form of solicitation;
    11. Not use the Services to defame, harass, abuse, threaten, stalk, or defraud any entity or person;
    12. Not submit, upload, post, or transmit any material that: (i) you do not have a right to reproduce, display, or transmit, including the right to license us to do the same; (ii) infringes any patent, trademark, service mark, trade secret, copyright, or other intellectual or proprietary rights of any party; or (iii) is unlawful, threatening, harassing, abusive, obscene, vulgar, sexually explicit, pornographic, offensive, violent, invasive of another’s privacy, publicity, contract, or other rights, tortious, false, or misleading, defamatory, libelous, hateful, discriminatory, or otherwise objectionable (as we may determine);
    13. Not interfere in any way with the operation of the Services or any server, network, or system associated with the Services, including by: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning, or testing the vulnerability of the Services or any server, network, or system associated with the Services; breaching or circumventing firewall, encryption, security, or authentication routines; accessing data not intended for you; or accessing another’s account that you are not expressly authorized to access;
    14. Not use any automated program, tool, or process (including web crawlers, scrapers, robots, bots, spiders, and automated scripts) to access the Services or any server, network, or system associated with the Services, or to extract, collect, harvest, or gather Content or other users’ Submissions (as defined below) from the Services in a manner not expressly authorized by us;
    15. Not frame or otherwise create a browser or border environment around any page or Content of the Services or deep-link to any internal page or area of the Services; and
    16. Not attempt to do any of the acts prohibited by this section 3.3 or assist or permit any person to engage in any of the acts prohibited by this section 3.3.
  4. User Submissions.
    1. The Services may permit you to submit, upload, post, or transmit messages, text, photos, and other materials on or through the Services (“Submissions”). Submissions do not include Feedback as defined in the Transaction Documents. As between us and you, you own your Submissions. You grant Modernizing Medicine a worldwide, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free, perpetual, and irrevocable right to use, reproduce, create derivative works of, display, perform, distribute, and otherwise exploit your Submissions for any and all lawful purposes. You are not entitled to payment for Modernizing Medicine’s or its licensees’ use of your Submissions.
    2. Please review our Privacy Policy for details about how we use your Personal Information and Protected Health Information (both as defined in the Privacy Policy) contained in Submissions, including those that are submitted through those Services designed to receive Submissions such as the Systems, Patient Portal, Kiosk, and APPatient.
    3. You are solely responsible for your Submissions. By posting a Submission, you represent and warrant that:
      1. You own or otherwise control all of the rights to your Submission, including all intellectual property, moral, and personal rights, and have all rights necessary to grant the rights and licenses in these Terms;
      2. Your Submission is true and accurate; and
      3. Your Submission complies with these Terms and applicable laws.
    4. You acknowledge and agree that Modernizing Medicine has the right to (but does not have to) alter, remove, or refuse to post or allow to be posted any Submission. You may request that Modernizing Medicine remove your Submission, but we will not be liable for our delay or failure to do so. Modernizing Medicine takes no responsibility and assumes no liability for any Submission (whether from you or another user) or for altering, removing, or refusing to post your Submission.
    5. Do not disclose any personal, identifying, or health information in your Submissions (other than Submissions that are submitted through those Services designed for such Submissions, such as the Systems, Patient Portal, Kiosk, and APPatient).
  5. Technology Requirements. You are solely responsible for providing and maintaining, at your own risk, option, and expense, appropriate software, hardware, and other technology needed for you to receive and use the Services, which must comply with any technical, quality, or other requirements we publish or otherwise make available. We may change these requirements at any time upon publication or other notice, with or without prior notice. You acknowledge that Modernizing Medicine is not responsible for the safeguarding, loss, or recovery of any data stored on your hardware. For example, use of the Services on a mobile device requires a compatible mobile device with at least a certain version of the applicable operating system and internet access. You are solely responsible for these requirements, including any applicable changes, updates, and fees, as well as for complying with the terms of your agreement with your mobile device, internet service, telecommunications, other service providers, and software and app licensors.
  6. Not Intended for International Use. The Services are intended for use only in the United States of America. If you access or use the Services or contact us from outside of the United States of America: (i) any information you provide to us or that we collect will be transferred to the United States of America; and (ii) by using the Services or submitting information, you authorize its transfer to and processing in and outside of the United States of America in accordance with these Terms, including the Privacy Policy.
  7. Support. If You are dissatisfied with the Services, please let us know at [email protected]. Your input is important to us.

CHANGES TO THE SERVICES

  1. Changes and Limitations. We may, with or without notice, and without liability to you or any other user: (i) modify, suspend, or terminate the operation of, or any feature of, the Services; (ii) restrict, limit, suspend, or terminate your and any other user’s access to the Services; (iii) monitor any user’s use of the Services, including to verify compliance with these Terms; (iv) investigate any suspected or alleged misuse of the Services and cooperate with any law enforcement or other governmental entity or any other third parties in such investigation; and (v) disclose information about any user’s use of the Services in connection with a law enforcement or other governmental entity investigation of alleged illegal activity or in response to a court order or subpoena.
  2. Updates.
    1. Modernizing Medicine may, but does not have to, develop and provide updates for our software Services, which may include upgrades, bug fixes, patches, and other error corrections and new features (collectively, “Updates”). Updates may also change or completely remove certain features and functionality. You agree that Modernizing Medicine has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
    2. Portions of the software Services may not properly operate if you do not install all Updates, so we encourage you to promptly install all Updates. For Apps, depending on your mobile device settings, when your mobile device is connected to the Internet, either: (i) the Updates will automatically download and install or (ii) you may receive notice of or be prompted to download and install available Updates. We may also suspend your access to Services until you install certain Updates. For clarity, all Updates are part of the Services and subject to these Terms.

TERMINATION

  1. Your Termination of Services. You may terminate your use of the Services by ceasing to use the Services. If you are a Patient User with an account, please contact your Provider to terminate your account. If you are a Provider, termination is addressed in and subject to the Transaction Documents.
  2. Our Suspension and Termination of Services. You acknowledge and agree that: (i) Modernizing Medicine may, at any time and without liability, terminate or suspend your access to the Services, in whole or in part, for any reason, including if Modernizing Medicine determines that you have violated these Terms, a Transaction Document, or any applicable law; (ii) such termination or suspension may happen without prior notice; and (iii) in the event of such termination or suspension, Modernizing Medicine may immediately deactivate and terminate your account and remove (or block your further access to) all Submissions stored in or associated with your account.
  3. Effect of Termination. Upon any termination of these Terms: (i) all rights granted to you under these Terms will cease; and (ii) you must cease all use of the Services. Any provisions of these Terms that, by their nature should survive the termination of these Terms, will survive.

PROPRIETARY RIGHTS

  1. Subject to you complying with these Terms, the Transaction Documents, and any other applicable terms and conditions, we grant you a revocable, conditional, and limited: (i) right to download and use the Apps; and (ii) right to access and use the Services, in each case solely for your own personal and non-commercial use (or, if you are a Provider, in connection with your authorized use of the Services as set forth in the Transaction Documents). If the Services permit you to download or print any Content, such Content may be used only by you and only in connection with this purpose. You may not copy or otherwise distribute any such Content. These rights are personal to you and you may not transfer, assign, or sublicense them to others. We may revoke these rights at any time and for any reason (including if you violate these Terms, the Transaction Documents, or any applicable law).
  2. The Services are the proprietary property of Modernizing Medicine and its third-party licensors and are protected by intellectual property laws. No rights are granted to you except for the express rights granted to you in these Terms and the Transaction Documents. We reserve all rights not expressly granted in these Terms and the Transaction Documents.
  3. The names, marks, logos, and other identifiers associated with Modernizing Medicine and its products and services are trademarks or service marks of Modernizing Medicine and are solely owned by Modernizing Medicine. Any unauthorized use, reproduction, or distribution of the Services is strictly prohibited and may result in civil and criminal penalties.
  4. Content. “Content” means all text, data, information, materials, images, photos, graphics, artworks, logos, videos, audios, directories, listings, databases, and other content we provide or make available through the Services. Modernizing Medicine provides Content and other information from the Services as a convenience. Users relying on Content or other information from the Services do so at their own risk.
  5. Feedback. If you provide us with any comments, suggestions, ideas, or other feedback (together, “Feedback”), you agree that: (i) we have no obligation to use it; (ii) we have an unrestricted right to use and exploit it, including the right to permit others to do both; and (iii) you are not entitled to receive any compensation.

THIRD-PARTIES SERVICES

The Services may contain links or provide access to third-party websites, products, and services (“Third-Party Services”). Modernizing Medicine does not approve, sponsor, or endorse any Third-Party Services, even if we link or provide access to them or list them on a Site. Modernizing Medicine is not responsible for and makes no representations or warranties, express or implied, regarding any Third-Party Services. You access and use Third-Party Services solely at your own risk. Third-Party Services may be subject to other terms and conditions and privacy policies (collectively, “Third-Party Services Terms”). You will look solely to, and must bring any rights, claims, or actions you may have related to a Third-Party Service directly against, the provider of that Third-Party Service.

NO WARRANTIES

  1. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY LAW, MODERNIZING MEDICINE MAKES NO AND DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE IN TRADE. MODERNIZING MEDICINE DOES NOT WARRANT: (i) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; (ii) THAT ANY DEFECT OR ERROR WILL BE CORRECTED; (iii) THAT THE SERVICES WILL BE SECURE AND FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (iv) THAT ANY CONTENT OR INFORMATION PROVIDED BY OR THROUGH THE SERVICES WILL BE CURRENT OR ACCURATE; (v) AGAINST ANY LOSS OR CORRUPTION OF ANY DATA OR SUBMISSIONS; OR (vi) THAT A PARTICULAR PRODUCT, SERVICE, OR PROVIDER IN CONNECTION WITH THE SERVICES WILL BE AVAILABLE TO YOU. ANY CONTENT OR INFORMATION PROVIDED BY OR THROUGH THE SERVICES IS INTENDED AS A SUPPLEMENT TO, AND NOT A SUBSTITUTE FOR, THE KNOWLEDGE, SKILL, AND JUDGMENT OF HEALTHCARE PROFESSIONALS. YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK.
  2. MODERNIZING MEDICINE MAKES NO GUARANTIES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND REGARDING THE COMPLETENESS OR ACCURACY OF ANY POPULATION HEALTH DATA OR OTHER INFORMATION PROVIDED BY THE SERVICES. THE POPULATION HEALTH DATA AND OTHER INFORMATION PROVIDED BY THE SERVICES IS NOT INTENDED AS LEGAL ADVICE AND ALL LEGAL INQUIRIES SHOULD BE DIRECTED TO YOUR LEGAL COUNSEL. MODERNIZING MEDICINE DISCLAIMS LIABILITY FOR ANY DAMAGES OF ANY NATURE WHATSOEVER, DIRECTLY OR INDIRECTLY, RESULTING FROM YOUR USE OF OR RELIANCE ON ANY INFORMATION PROVIDED BY THE SERVICES.

LIMITATIONS OF LIABILITY

  1. IN NO EVENT WILL WE (WHICH, AS A REMINDER, INCLUDES OUR AFFILIATES) OR ANY OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, ADVISORS, CONTRACTORS, OR CONSULTANTS BE LIABLE TO YOU (WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR ANY OTHER THEORY) FOR: (i) ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, OR INFORMATION OF ANY KIND) ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR (ii) DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS EXCEEDING, IN THE AGGREGATE FOR ALL CLAIMS, THE GREATER OF: (a) THE AMOUNTS PAID BY YOU, IF ANY, FOR THE SERVICES ASSOCIATED WITH THE CLAIM IN THE 3 MONTHS PRIOR TO THE EVENTS GIVING RISE TO SUCH CLAIM OR (b) $100.
  2. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THESE TERMS WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  3. EXCEPT TO EXTENT PROHIBITED BY APPLICABLE LAW, MODERNIZING MEDICINE’S LIABILITY TO YOU IS LIMITED AS SET FORTH IN THIS SECTION 9. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR OTHER DAMAGES OR TOTAL LIABILITY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

USER INDEMNITY

In addition to any indemnification obligations you may have, you will indemnify us (which, as a reminder, includes affiliates) and our respective officers, directors, employees, agents, representatives, advisors, contractors, and consultants (collectively, “Indemnified Parties”) from and against any and all claims, actions, suits, demands, liabilities, damages, losses, penalties, interest, fines, costs, and expenses (including reasonable attorneys’ fees and legal costs) arising out of or related to: (i) your use of, your inability to use, or your reliance upon the Services or any of its components or any other products or services of Modernizing Medicine; (ii) your Submissions and Feedback; or (iii) your violation of these Terms, the Transaction Documents, or any applicable law. You agree to provide us with such cooperation as we reasonably request related to any such claims, actions, suits, or demands.

LIMITATIONS ON CLAIMS; AGREEMENT TO ARBITRATE

  1. Disputes Subject to Arbitration. Please read the following section carefully because it requires you to arbitrate Disputes with Modernizing Medicine (which, as a reminder, includes affiliates) and our respective owners, stockholders, officers, directors, employees, representatives, and agents (collectively, the “Modernizing Medicine Parties”) and limits the manner in which you may seek relief from us, including a class action waiver. This section 11 applies to all Disputes (unless excluded under section 11.3) between you and the Modernizing Medicine Parties. “Dispute” means disputes, claims, suits, actions, causes of action, controversies, demands, or proceedings arising out of or related to these Terms or the Services in any way, whether directly or indirectly, or to the relationship between the parties resulting from these Terms or the Services. If you are a Provider, dispute resolution is instead addressed in and subject to the Transaction Documents.
  2. Waiver of Jury Trial and Right to Pursue Class Action Claims. By entering into these Terms, the parties are each waiving the right to trial by jury or to participate in a class or representative action. These Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
  3. Exclusions. This arbitration agreement does not preclude any party from seeking a preliminary injunction or temporary restraining order, pending arbitration, in any court that has competent jurisdiction. Nor does this arbitration agreement bar a party from bringing issues to the attention of federal, state, or local agencies.
  4. Notice of Disputes. The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If either you or Modernizing Medicine intends to seek arbitration of a Dispute, then that party must provide the other with notice in writing. The notice to Modernizing Medicine should be sent to the following address: Modernizing Medicine, Attn: General Counsel, 4850 T-Rex Avenue, Suite 200, Boca Raton, Florida 33431. Modernizing Medicine will send notice to you at the mailing address or email address associated with your account, if applicable. Your notice to Modernizing Medicine must: (i) provide your name, mailing address, and email address; (ii) describe the Dispute; and (iii) set forth the relief you are requesting. If the parties are unable to reach an agreement to resolve the Dispute within 60 days after the notice is received, the party that sent the notice may commence arbitration.
  5. No Class Arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and Modernizing Medicine agree that each may bring claims against the other in arbitration only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. If a court decides that applicable law precludes enforcement of any of this section’s limitations as to a particular cause of action or any particular remedy, then that cause of action or particular remedy (and only that cause of action or particular remedy) must remain in court and be severed from any arbitration.
  6. Arbitration Procedures. The arbitration will be administered by the American Arbitration Association (“AAA”) and governed by the AAA’s Commercial Arbitration Rules (“AAA Rules”), as modified by these Terms. The AAA Rules are available online at www.adr.org. If the AAA is unavailable, the parties will agree to another arbitration provider or a court of competent jurisdiction will appoint a substitute.
    1. Location of Arbitration. Unless the parties agree otherwise, any arbitration hearings will take place in the county (or parish) of your principal place of business or residence, as applicable.
    2. Issues for Arbitrator. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of any of this arbitration agreement or the arbitrability of Disputes are for a court of competent jurisdiction to decide.
    3. Written Decision. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
  7. Costs of Arbitration. The parties will pay the arbitrator’s fees, the arbitrator’s appointed experts’ fees and expenses, and the AAA filing, administrative, and hearing fees in accordance with the AAA Rules. If you complied with the notice requirements of section 11.4 and the value of your claims is: (i) $75,000 or less, Modernizing Medicine will pay your share of any such AAA fees; (ii) between $75,000 and $300,000, your share of any such fees will be capped at $200; and (iii) $300,000 or more, the allocation of AAA fees will be governed by the AAA Rules. If an arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA fees will be governed by the AAA Rules. In such cases, the arbitrator may direct you to reimburse Modernizing Medicine for amounts that Modernizing Medicine paid on your behalf.
  8. Limitation on Time to Bring an Action. You agree that regardless of any law to the contrary, you must file any Dispute within 1 year after such Dispute arose or such Dispute will be forever barred.
  9. Enforcement. Judgment on the award may be enforced by any court having jurisdiction over the award, the applicable party, or its assets.

MISCELLANEOUS

  1. Notice. Modernizing Medicine may provide you with notices, including those regarding changes to these Terms, by postings on the Sites or in the other Services or by other means (e.g., via email).
  2. Governing Law; Venue. These Terms and any Dispute between you and Modernizing Medicine arising out of or relating to the Services or these Terms will be governed by and construed in accordance with the laws of the State of Florida, without regard to any provision of Florida law that would require or permit the application of the substantive law of another jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, will be resolved on an individual basis in the state or federal courts of the State of Florida and the United States, respectively, sitting in Palm Beach County, Florida. If you are a United States city, county, or state government entity, then the following applies instead of the language above: the parties agree to remain silent regarding governing law and venue.
  3. Waiver. A waiver of a provision of these Terms must be in writing and signed by the party entitled to the benefit of such provision. Modernizing Medicine’s failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
  4. Severability. If any provision of these Terms is declared void or unenforceable by any judicial or administrative authority, the parties will replace such provision with a substitute that as closely as possible reflects the parties’ original intent (including economics and allocations of risk) and is enforceable, and the validity of the other provisions and of these Terms as a whole will not be affected.
  5. Independent Contractor. No joint venture, partnership, employment, or agency relationship exists between you and Modernizing Medicine as a result of these Terms or use of the Services.
  6. Interpretation. Headings used in these Terms are for convenience only and will not be used in interpreting these Terms. These Terms will be deemed to be drafted by both parties and will not be construed against either party. Unless the context otherwise requires, the term “include” (and its variants) are to be construed as inclusive, not exclusive, and are deemed to be followed by the words “without limitation.”
  7. Force Majeure. Modernizing Medicine will not be liable for failure or delay in performing its obligations if such failure or delay is due to a force majeure event or other circumstances beyond Modernizing Medicine’s reasonable control, including acts of any governmental body, war, cyber war or attack, terrorism, insurrection, sabotage, embargo, fire, flood, severe weather, earthquake, tornado, hurricane, labor disturbance, interruption of or delay in the internet or transportation, unavailability of third-party services, failure of third-party software or services, or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services or any other products or services contemplated by these Terms or any of the Transaction Documents.
  8. Disclosures. The Services are offered by Modernizing Medicine, Inc. (and its affiliates), located at 4850 T-Rex Avenue, Suite 200, Boca Raton, Florida 33431, email: [email protected], Telephone: 866-799-2146. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
  9. Questions and Comments. If you have a question or comment regarding the Services, please contact us via email or at the address below. We value your input.
    10. Modernizing Medicine Attn: General Counsel 4850 T-Rex Avenue, Suite 200 Boca Raton, Florida 33431 561-880-2998 [email protected]
  10. Disclosures. To be clear, nothing in these Terms is to be construed to restrict or prohibit you or anyone else from disclosing to any person information relating to the performance of the Services, including for patient safety, public health, or quality improvement purposes, including for: (i) sharing comparative user experiences that may affect patient care; (ii) developing best practices for health information technology implementation and clinician use; (iii) reporting of health information technology-related adverse events, hazards, and other unsafe conditions; (iv) reporting issues related to interoperability, information blocking, and data portability; (v) conducting research studies for peer-reviewed journals; and (vi) participating in cyber threat sharing activities.

DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE

  1. If you are a copyright owner (or an agent of a copyright owner) and believe that any third-party content on the Services infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
    1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
    2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a list of such works from the Services;
    3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Modernizing Medicine to locate the material;
    4. Information reasonably sufficient to permit Modernizing Medicine to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
    5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
    6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  2. Modernizing Medicine’s designated Copyright Agent to receive notifications of claimed infringement is:
    3. Daniel Cane 4850 T-Rex Avenue, Suite 200 Boca Raton, Florida 33431 Email: [email protected] Telephone: 866-799-2146 Fax: 561-423-5912

APPLE DEVICE ADDITIONAL TERMS

If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are made part of these Terms:

  1. Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision of these Terms, then the Apple Device Additional Terms will control but only with respect to access and use of the Services via an Apple Device.
  2. Agreement with Modernizing Medicine, Not Apple. You acknowledge that these Terms are an agreement between Modernizing Medicine and you, and not with Apple. Modernizing Medicine, not Apple, is solely responsible for any App you access via your Apple Device (“iOS App”) and the content of iOS Apps. If these Terms are less restrictive with respect to an iOS App or otherwise conflict with, the Apple App Store Terms of Service (the “App Store Terms of Service”), the App Store Terms of Service will apply to the extent of any conflict.
  3. Scope of License. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
  4. Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. If Modernizing Medicine decides (in its sole discretion) to provide support and maintenance services for an iOS App, Modernizing Medicine is solely responsible for providing such services.
  5. Warranty. In the event of any failure of an iOS App to conform to any applicable warranty provided by Modernizing Medicine in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any), to the maximum extent permitted by applicable law Apple will have no other warranty obligation whatsoever with respect to the iOS App, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty is Modernizing Medicine’s sole responsibility. Notwithstanding the foregoing, Modernizing Medicine is not obligated to provide any warranty with respect to an iOS App and you acknowledge and agree that this paragraph will not have any effect on the warranty disclaimers provided in these Terms.
  6. Product Claims. You acknowledge that Modernizing Medicine, not Apple, is responsible for addressing your or any third-party claims relating to an iOS App or use of an iOS App, including: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) any claims arising under consumer protection or similar legislation. Note that, pursuant to the limitation of liability provision set forth in these Terms, these Terms will not limit Modernizing Medicine’s liability beyond what is permitted by applicable law.
  7. Intellectual Property Rights. You acknowledge that as between Modernizing Medicine and Apple, in the event of any third-party claim that an iOS App or your possession and use (in accordance with these Terms) of an iOS App infringes that third-party’s intellectual property rights, Modernizing Medicine, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
  8. Legal Compliance. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
  9. Third-Party Beneficiary. You acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms with respect to any iOS App and that, upon your acceptance of these Terms, Apple has the right (and is deemed to have accepted the right) to enforce these Terms against you with respect to the iOS App as a third-party beneficiary of these Terms.
  10. Questions or Complaints. Please address your questions, complaints, or claims with respect to an iOS App to Modernizing Medicine at 561-880-2998 or [email protected]. Modernizing Medicine’s principal offices are located at 4850 T-Rex Avenue, Suite 200, Boca Raton, Florida 33431.

GOOGLE MAPS AND PLACES

By using Google Maps you agree that the then-current Google Maps/Google Earth Additional Terms of Service (currently at https://maps.google.com/help/terms_maps.html) and Google Privacy Policy (currently at https://www.google.com/policies/privacy/) apply and agree to comply these Third-Party Services Terms.

APPENDIX A