UNIFIED TERMS OF SERVICE
YOU ACCEPT THIS AGREEMENT AND IT BECOMES A BINDING CONTRACT UPON YOUR USE OF THE SERVICE, INCLUDING BY CREATING AN ACCOUNT. YOU ALSO RECONFIRM THIS AGREEMENT UPON EACH LOGIN OR USE OF THE SERVICE.
THIS AGREEMENT MAY ALSO BE REFERENCED IN AN ORDER FORM OR OTHER WRITTEN DOCUMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN AGENT FOR A COMPANY OR OTHER BUSINESS OR OTHER LEGAL ENTITY: (A) THIS AGREEMENT IS BINDING ON YOU AND (B) THIS AGREEMENT IS BINDING ON YOUR COMPANY/BUSINESS AND (C) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER COLLECTIVELY TO YOU, INDIVIDUALLY, AS WELL AS SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE USE OF, AND YOU MAY NOT USE AND WE DO NOT CONSENT TO YOUR USE OF, THE SERVICES.
TERMS OF SERVICE
“Data” means any and all electronic information.
“De-Identified Data” means meta data generated by the operation of the Services, aggregated data, and other data that does not identify an individual or business.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Service(s)” means the functionality and processing capabilities and other features provided on, or that are made available from or otherwise in respect to the information provided at the Website, or any subdomain thereof or on which this Agreement is referenced, including but not limited to online and mobile applications that access such site or data, as well as any other communications services We provide or enable (i.e., electronic mail, text, iMessage, Skype, Twitter, fax, etc.).
“Term” means the period this Agreement is in effect – which begins on Your first use or access to the Service and ends upon Your or our express termination of the Service.
“Third Party Data” means all electronic data or information residing in the Service that is owned by a person or entity other than You or Us but does not include De-Identified Data.
“User Guide” means any online or written documentation made available to You.
“User(s)” means You and/or individuals who are authorized by You and permitted hereunder to use the Services.
“We,” “Us” or “Our” means Epion Health, Inc., a New Jersey corporation.
“You” or “Your” or similar pronouns means you, individually, and the company or other legal entity for which you are accepting this Agreement, and affiliates of that company or entity.
“Your Data” means all Data submitted by You in respect of using the Services but does not include De-Identified Data.
2. RIGHTS AND OBLIGATIONS OF THE PARTIES; LIMITATIONS AND RESTRICTIONS
2.2. Your rights. During the Term You may use the Service for Your own personal use. Unless applicable law permits it and by doing so You will not violate applicable law or the rights of a third person, You will not use the Service on account of any other person, including a family member. If You do use the Service on behalf of a third person, We are not responsible to You or that third person if that person suffers personal or economic damages, and You hereby agree to defend, indemnify and hold Us harmless from and against any claim by any third person for whom You make use of the Service.
2.3. Your general obligations. You shall: (i) be responsible and liable for the acts and omissions of, including any breach of this Agreement caused by, Users and third parties who access the Services through You or any User, (ii) be solely responsible for the accuracy, quality, use, development, integrity and legality of Your Data and of the means by which You acquire and use Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Your Data, and notify Us in writing, electronically and via phone call promptly of any such unauthorized access or use of the Service or the access credentials We provided You, and (iv) use the Services only in accordance with this Agreement, the User Guide and applicable laws, rules and regulations, including but not limited to all laws regarding privacy, and sending (and unsubscribing from) unsolicited commercial emails.
2.4. You agree not to: (a) sell, resell, sublicense, offer as a service bureau, rent or lease the Services, (b) directly or indirectly use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy, publicity or personal rights or other obligations owed to third parties, (c) use the Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Services, (e) attempt to or actually gain unauthorized access to the Services or their related systems or networks, (f) access the Services for purposes of, monitoring the availability, performance or functionality of the Service, or for any other benchmarking or similar purposes, or to hack, trick, cheat, perform any other tests or vulnerability assessments, monitor or check the security features of, or otherwise directly or indirectly manipulate Service to anyone’s benefit, without our written consent, or (g) attempt to access data or programs that belong to other customers, or acquire login credentials of other Users, or otherwise share Your login credentials with third parties. For the avoidance of doubt You are liable for any act or omission of a User that constitutes a violation of the above requirements, whether or not such act or omission was permitted or authorized by You.
3. NO LIABILITY FOR THIRD-PARTY SERVICES OR PROVIDERS
The Service may include, and from time to time We may offer, third party applications, software, modules, data, and services integrated with Our Service. In addition, Our Service may be integrated into a third party service or platform. We are only responsible for Our Services, and You agree that We shall not be liable, or otherwise responsible, for the accuracy, performance, reliability, availability or any other feature, failure or damage caused by any third party service, plugin, software, module, component, library, platform or other functionality (“Third Party Service”) that is not developed by Us. Each such Third Party Service may contain additional terms. You agree that if You are damaged or have any issue with such Third Party Service, You will contact the vendor/supplier of that Third Party Service directly, and seek all remedies solely and directly with them.
4. PROPRIETARY RIGHTS
4.1. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related patent, copyright, trademark, trade secret and other proprietary rights therein (intellectual property rights), and all enhancements, modifications and other alterations or derivatives thereof, regardless of whether such enhancements, modifications and other alterations or derivatives thereof arise from any suggestion, input, idea, or other submission by You or a User. For the avoidance of doubt, You hereby assign over to Us (and automatically assign over to us in the future) all right, title and interest to all intellectual property rights described or disclosed in any suggestion, input, idea, or other submission by You relating to the Service; provided however that at no time shall We own any rights in Your Data. No rights are granted to You hereunder other than as expressly set forth herein, all of which are reserved.
4.2. You shall not (and covenant not to) (i) create derivative works based on the Services, (ii) copy, frame or mirror any part or content of the Services, (iii) reverse engineer, decompile, de-obfuscate or otherwise disassemble or derive the source code from the Services, or (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
5.1. Definition. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”), whether directly, or indirectly through others, to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the non-publicly available components of the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. De-Identified Data is Our Confidential Information.
5.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
5.5. Change of Control. Notwithstanding the above, Confidential Information may be transferred to a successor in interest by merger, sale of business or other change of control.
6. WARRANTIES AND DISCLAIMERS
6.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
6.2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS OR WARRANTIES HEREIN THE SERVICE IS PROVIDED “AS IS” WITHOUT ANY OTHER WARRANTY OF ANY KIND AND WE HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING UNDER any UNIFORM COMMERCIAL INFORMATION TRANSACTIONS ACT. THERE IS NO WARRANTY THAT ANY SERVICE INFORMATION, POSTINGS, CONTENT, EFFORTS, SERVICES, THE SERVICE OR ANY SYSTEM PROVIDED BY US WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. FOR THE AVOIDANCE OF DOUBT, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICES COMPLY WITH ANY APPLICABLE DATA PROTECTION LAW, SUCH AS THE GRAMM-LEACH-BLILEY ACT OF 1999, THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (“HIPAA”) OR ANY RELATED STATUTES OR REGULATIONS, OR ANY PERSONAL INFORMATION PROTECTION ACT.
7.1. Indemnification. In addition to any other indemnity provided herein, You hereby covenant to indemnify, defend and hold Us (and our members, owners, officers, employees, agents, affiliates and other persons acting on Our behalf) harmless from and against any claim made or brought against Us by a third party: (i) alleging that Your Data or any Third Party Data You provide to us or Your (or Your Users’) use of the Services, are in violation of this Agreement, infringe or misappropriate the intellectual property or other personal or corporate rights of a third party or violates applicable law, rules, regulations or orders; (ii) arising from Your (or Your agents, affiliates, Users or other persons who act on Your behalf) negligent or intentional action or omission, breach of this Agreement, or failure to comply with applicable law, rules, regulations or orders. Without limiting the foregoing, You shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us (and our members, owners, officers, employees, agents, affiliates and other persons acting on Our behalf) in connection with any such claim. We shall endeavor to give You prompt written notice of any claim that is indemnified hereunder, and reasonably cooperate with Your resolution of such claim.
7.2. Infringement claims. In the event a third party makes a claim that the Service infringes its intellectual property or other rights, You shall give Us prompt written notice of such claim. Provided that such claim does not arise from Your Data or Your misuse of the Service or other act or omission, We shall have the right to among other actions, seek a license, resolve, provide a design-around, or otherwise make modifications to avoid such infringement or other rights claim. In Our discretion if We determine that the above actions are commercially infeasible, in addition to any other rights herein, we may terminate this Agreement or the applicable portion of the Services that is alleged to cause the infringement or otherwise violate third party rights. Our obligation to either provide a non-infringing replacement or termination of this Agreement is Your exclusive remedy in the event of a third-party claim that the Service infringes their intellectual property or other rights.
8. LIMITATION OF LIABILITY AND REMEDY
8.1. Limitation of Liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $100. IF APPLICABLE LAW LIMITS OUR RIGHT TO LIMIT OUR LIABILITY TO YOU, THEN THIS LIMITATION SHALL BE EFFECTIVE ONLY TO THE EXTENT AND IN THE LOWEST AMOUNT THAT WE ARE PERMITTED TO LIMIT OUR LIABILITY TO YOU.
8.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU, YOUR AFFILIATES, OR ANY OTHER PERSON WHO USED OUR SERVICE WITH YOUR ACCESS RIGHTS FOR ANY LOST PROFITS OR LOST REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER ARISING HEREUNDER OR UNDER OTHER APPLICABLE LAW, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3. Repair Or Replace Remedy. You agree that your sole remedy in the event You have any claim against Us in respect of the provision of the Service is for us to repair, replace or otherwise correct such Service to meet the warranty provided for herein; under no circumstances will We be liable to You in such cases for any damages, costs or fees of any kind, including but not limited to actual, compensatory, direct, incidental, punitive or consequential damages, whether or not occasioned by Our negligence. If this provision is determined to have failed of its essential purpose or is otherwise deemed or determined to be unenforceable, You agree that this provision is an independent limitation from all other limitations of remedies herein, and all such other limitations on remedy, including but not limited to those in Sections 8.1 and 8.2 shall survive and remain applicable to any claim You make, including but not limited to any claim that We failed to provide an effective repair, replacement or re-performance of services.
9. TERM AND TERMINATION; ACCOUNT DELETION
9.1. Termination. Unless another written agreement exists between You and Us that states a different provision, the Term of this Agreement may be terminated by either You or Us by notice to the other party, which notice may be by electronic mail or other reasonable means.
9.2. Imminent harm. If We determine that Your use or actions are causing or likely to cause material and imminent damage to Us, to our infrastructure or to our ability to provide the Service, We may also suspend Your access to the Service immediately without notice. We shall endeavor in subjective good faith to give You notice if We take this emergency action, and to restore the Services as soon as the issue that caused such suspension is resolved, in Our discretion.
9.3. Permanent and irretrievable data deletion. Upon Your account termination We may immediately permanently delete Your Data. The Service is not a backup service and You should store copies of Your Data in other locations.
9.4. Surviving Provisions. All provisions that by their nature should survive the end of the Term shall so survive, including at least Sections 3 – 5, 2, and 7 – 11.
9.5. Account deletion. If We provide You with a login or the ability to create an account, We reserve the right, but not the obligation to permanently delete any account You have created that has been suspended or terminated for more than 30 days, or that has not been used in 60 days. PLEASE NOTE: All of Your Data and Third Party Data associated with an account will be deleted when the account is deleted, and except for any audit trail that we deem necessary to resolve any dispute, We do not retain backups or any method of restoring deleted accounts, and We are not liable in any manner for any data loss resulting from our deletion of terminated or suspended accounts.
10. GOVERNING LAW AND JURISDICTION; ARBITRATION
10.1. Jurisdiction. This contract will be governed by the laws of the State of New Jersey, exclusive of its conflicts of laws provisions. The parties agree that the Uniform Commercial Code, the United Nations Convention on Contracts for the International Sale of Goods and any Uniform Computer Information Transactions Act shall not apply between us. Each party agrees consents to the exclusive jurisdiction of the courts in the State of New Jersey.
10.2. Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3.1. Notwithstanding anything to the contrary contained in this Agreement, except with respect to actions for equitable relief, which claim may be filed directly in a court of competent jurisdiction as provided above, any other dispute between the parties to this Agreement, whether arising in tort, contract, pursuant to a right under statute, rule or regulation, and including any claim that may be subject to a class action, shall be settled by binding arbitration under the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (the “AAA”), and shall be held in the State of New Jersey, United States.
10.3.2. Any dispute properly submitted for arbitration shall be referred to one arbitrator in an arbitration administered by the AAA, according to the following procedures: The party or parties submitting (“Submitting Party”) the intention to arbitrate (the “Submission”) shall nominate one arbitrator. If within 20 days of receipt of the Submission, the party or parties receiving the Submission (“Answering Party”) does not agree on such arbitrator, then the arbitrator shall be appointed by the AAA in accordance with the Rules unless the parties can agree on an arbitrator. The parties agree that they shall consent to an expedited proceeding under the Rules, to the full extent the AAA can accommodate such a request.
10.3.3. The ruling of the arbitrator shall be binding and conclusive upon all parties hereto and any other person or entity with an interest in the matter, and the arbitrator shall have the authority to direct the parties to make payments, withdrawals and distributions with the results of arbitration.
10.3.4. The arbitration provision set forth in this Agreement shall be a complete defense to any suit, action or other proceeding instituted in any court regarding any controversy or claim (except as provided for above for claims permitted to be filed directly in court, but including, without limitation, whether any controversy or claim is subject to arbitration) arising out of or relating to any said disputes to be arbitrated hereunder between the parties; provided, however, that (A) any of the parties to the arbitration may request a State of New Jersey State Court or State of New Jersey Federal District Court to provide interim injunctive relief in aid of arbitration hereunder or to prevent a violation of this Agreement pending arbitration hereunder (and any such request shall not be deemed a waiver of the obligations to arbitrate set forth in this Agreement), (B) any ruling on the award rendered by the arbitrator may be entered as a final judgment in any court of competent jurisdiction anywhere in the United States, including but not limited to in a State of New Jersey State Court or State of New Jersey Federal District Court (and each of the parties hereto irrevocably submits to the jurisdiction of such court for such purposes) and (C) application may be made by a party to any court of competent jurisdiction wherever situated for enforcement of any such final judgment and the entry of whatever orders are necessary for such enforcement.
10.3.5. In any proceeding with respect hereto, all direct, reasonable and out-of-pocket costs and expenses (including, without limitation, AAA administration fees, arbitrator fees, expert witness fees, and attorneys’ fees) incurred by the parties to the proceeding shall, at the conclusion of the proceeding, be paid by the party incurring the same; however, the arbitrator may award payment of all or any portion of any such fees and expenses to the prevailing party in arbitration, or on the basis of any obstreperous or excessive litigation tactics.
10.3.6. The arbitrator shall have power to permit reasonable discovery using subpoenas and other regular procedures and the parties shall cooperate in such discovery and not unduly multiply the proceedings, make duplicative or unnecessary requests or otherwise cause undue expense. The arbitrator shall have the power to sanction any party that violates the arbitrator’s rules or orders, which sanctions may include payment of fees and costs incurred by the other party, up to and including dismissal and/or default judgment.
11. GENERAL PROVISIONS
11.1. Export Compliance. The Service is not for export and may not be used or exported outside of the United States. If We agree in writing with You in a separate Agreement, You may use the Service from a remote non U.S. jurisdiction, provided that You covenant to comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting You (i) shall ensure that all such remote non U.S. Users are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
11.2. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, intended or implied.
11.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6. Attorney Fees. If we are required to enforce this Agreement and we substantially prevail in such action, You shall pay on demand all reasonable costs We incurred in such effort, where “costs” shall include Our reasonable attorneys’ and other professionals’ fees. You further agree that this covenant shall survive any judgment and this duty and obligation to pay “costs” shall continue until full collection of the judgment, including but not limited to all appeals of any decision.
11.7. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Us (not to be unreasonably withheld). We may assign this Agreement at any time, to any person. Any assignment by a party in violation of this provision is void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8. Entire Agreement. Unless You and We have entered into a separate written and signed agreement that states otherwise, this Agreement, including all exhibits, documents incorporated by reference, and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit, addendum shall prevail. No employee, agent or other person associated with Us has the right or power to amend, waive or otherwise orally modify this Agreement.
11.9. Amendment. We may add to, remove or otherwise change or modify the terms and conditions of this Agreement at any time by giving notice on the Service and such notice may be provided at the time You login, or via a textual notice appearing on the Service that terms have changed, or via email or other reasonable means. Your continued use of the Service after we make any changes to this Agreement constitutes Your acceptance and agreement to such changes. If You do not agree to such changes You must notify Us promptly upon learning of such changes (in no event less than 3 business days after they are posted and We have provided notice) and cease using the Services. If You timely object to the new Agreement as provided above, then such objection shall constitute a termination of this Agreement for Your convenience and the new Agreement terms shall not apply to You.
11.10. No adverse construction. You and We have had the opportunity to consult with, review and negotiate the terms and provisions of this Agreement and use of the Service, and neither party shall therefore be subject to any adverse construction rule as the draftsperson of the Agreement.
11.11. Electronic Communications. You agree to transact business with Us using electronic communications, either via web forms on the Service, or via email. Electronic communications will be deemed received by You when Your electronic communication system reports that any electronic communication We send You has been received by Your system, regardless of whether You ever actually open or read such electronic communication. We may, but are not required, to use return receipt requests. Unless specifically required by applicable law or as otherwise provided herein, You consent to receive all notices, information, and other communications from Us concerning any subject matter, via electronic communication. It is Your responsibility to maintain valid electronic communication addresses, and to review the Services messages, and We may terminate Your access to the Service without liability to You if, after We give You reasonable prior notice, You fail to update and maintain Your electronic communication addresses.
11.12. Change in Services. We may add, change, discontinue, remove or suspend any and/or all Services, including features and specifications of products described or depicted on the Service, temporarily or permanently, at any time, without notice and without liability.
11.13. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination unless the party receiving such email responds that the email is sufficient notice). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.