MOBIMED TERMS & CONDITIONS
Effective: March 1, 2019
The agreement by an employee, consultant or contractor acting on behalf of an entity to these terms will be deemed to be the agreement of that entity. Any such employee, consultant or contractor hereby represents and warrants that he, she or it has authority, or has been provided authority, to bind the entity to the terms and conditions of this Agreement.
MobiMed, Inc., a Nevada corporation (“MM”) is only willing to grant Subscriber access to the Services upon the condition that Subscriber accepts all of the terms contained herein. If Subscriber is deemed to have ordered the Services, MM’S acceptance is expressly conditional on assent to these terms to the exclusion of all other terms (specifically including any new or different terms contained in a purchase order). If these terms are considered an offer by Subscriber, acceptance is expressly limited to these terms. Written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation or any such written approval by or on behalf of MM shall be construed as an inference to the contrary.
Notwithstanding anything to the contrary, if Subscriber and MM have both executed a written Subscriber Agreement which governs access to or use of the Services, then the terms of the Subscriber Agreement shall govern and control and to the extent there is a direct conflict between the terms of this Agreement and the terms of the Subscriber Agreement.
Each of Subscriber and MM may be referred to herein as a “party,” and Subscriber and MM together may be referred to as the “parties.”
PERMITTED USES AND RESTRICTIONS
“Services” means (i) one or more mobile or web, services and/or applications enabled by access to the software hosted by MM, (ii) any object code version of MM’S proprietary computer programs delivered to Subscriber hereunder for use in connection with any MM service or product; (iii) any connector software and/or any other server-side software, each of which may be delivered to Subscriber hereunder for use in connection with any MM service or product; (iv) any of MM’S websites or webpages, and (v) all other software (including but not limited to necessary third party software), applications, application programming interface, proprietary computer programs, documentation relating to any of the foregoing, backup copies, updates, upgrades, patches, maintenance releases, or bug fixes provided by MM, whether in read only memory, on any other media or in any other form.
Subject to the terms and conditions of this Agreement, during the applicable Agreement Term (as defined below), MM grants to Subscriber a non-exclusive, non-transferable and non-sublicensable right for Subscriber to access, download and use the Services in conjunction with Subscriber’s internal business purposes and in accordance with MM’S applicable documentation.
Subscriber is granted permission to access, download and use the Services, provided that Subscriber shall:
• Not copy, rent, lease, lend, sell, redistribute, sublicense or assign the Services;
• Not use the Services for any illegal or unauthorized purposes or beyond the scope of the Services’ expected use;
• Not interfere with operation of the Services or with any other person’s use of the Services;
• Not gain unauthorized access to the Services;
• Not use the Services in excess of or beyond the maximum number of registered users and/or devices that Subscriber has agreed to;
• Be solely liable for Subscriber’s, including without limitation all of its users, conduct, a MM and omissions, and any data, text, information, screen names, graphics, photos, profiles, audio and video clips, links and other content and materials that Subscriber submits, posts, displays and transmits using the Services;
• Not alter, modify, adapt, reverse engineer, decompile, disassemble or hack the Services, or create derivative works from the Services;
• Not merge the Services with other software;
• Not resell, sell, provide for service bureau use, or otherwise transfer the Services to any third party
• Not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services
• Not remove or alter any copyright notices or other notices included in the Services;
• Not alter or modify another website so as to falsely imply that it is associated with MM;
• Not use the Services to create or transmit unwanted email, junk email, bulk email, promotions, spam or content that includes any advertising;
• Not transmit any viruses, bugs, worms, or any other computer code of a destructive nature or that may harm a network, computer, server, hardware, software or telephone equipment using the Services;
• Not violate anyone else’s legal rights (e.g. privacy rights) or any laws (e.g. copyright laws) in Subscriber’s jurisdiction while using the Services;
• Remain solely responsible for any message data sent from Subscriber’s account;
• Use the Services in accordance with all applicable laws and agree that this Agreement is void where prohibited;
• Not use the Services to transmit content that may be deemed unlawful, threatening, harassing, racist, abusive, libelous, pornographic, vulgar, defamatory, obscene, indecent, or otherwise inappropriate, including any messages constituting or encouraging criminal conduct; content that violates or infringes on MM’S legal rights or copyrights, or the legal rights or copyrights of others;
• Not use any data mining, robots, or similar data gathering and extraction methods in connection with the Services;
• Not impose an unreasonable burden on the Service or network;
• Not breach, or attempt to breach, the security of the Service;
• Not use the Services or export the Services in violation of U.S. export laws and regulations;
• Not solicit any activity, unlawful or otherwise, that infringes MM’S rights or the rights of any other party;
• Not enable others to violate any of these terms and conditions; and
• Ensure that all end users of the Services are at least 18 years of age or older.
A violation of any of the terms in this Agreement by Subscriber will result in the termination of Subscriber’s MM account and Subscriber’s inability to access or use the Services. In addition, MM reserves the right to refuse service to anyone for any reason at any time. MM may (but has no obligation to) restrict accounts containing content that MM determines (in its sole discretion) is unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable. While MM prohibits certain conduct and content, Subscriber understands and agrees that MM is not responsible for the content transmitted between MM users. Notwithstanding MM’S governing terms and conditions, Subscriber acknowledges that he, she or it may still be exposed to offensive or unlawful content and agrees to assume these risks and use the Services at Subscriber’s own risk. MM further reserves the absolute right to reclaim names and keywords from Subscriber and others on behalf of businesses or individuals that may a hold legal claim or a trademark right in those words, as determined by MM in its sole discretion.
MM retains ownership of the Services and reserves all rights not expressly granted herein. MM owns and retains all right, title, and (except as expressly licensed hereunder) interest in and to the Services and all copies or portions thereof, and any derivative works thereof (by whomever created). All suggestions or feedback provided by Subscriber, including Subscriber’s employees, contractors or other agents, with respect to the Services shall be MM’s property and deemed Confidential Information (as defined below) of MM, and Subscriber hereby assigns the same to MM. There are no implied licenses granted by MM under this Agreement.
“MobiMed” graphics, logos, designs, page headers, button icons, scripts and service names are trademarks in the United States and other countries. MM’s trademarks and trade dress, as well as third party trademarks, logos and service marks used in conjunction with the Services, may not be used in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of MM.
Subscriber represents and warrants that Subscriber fully understands and acknowledges that (i) the Services are intended to deliver non-critical, non-emergency messages between users; (ii) the Services are dependent upon a number of factors outside the control of MM, including but not limited to, the operation of third party provided hardware and network services; (iii) the Services are not a substitute for any of Subscriber’s current systems of administering and safeguarding medical treatment and/or medicine; (iv) there may be occasional communication failures or delays in the delivery or receipt of properly sent MobiMed messages, and (v) the Services are not expected to perform at the same level of performance and/or reliability one might expect from medical devices used in the delivery of critical medical care environments.
By using the Services, Subscriber grants MobiMed permission to send all Subscriber end user messages regarding the Services, its features, service alerts, and network activity. Notwithstanding the foregoing, it is Subscriber’s responsibility to register for updates from, and/or regularly check, MM’s webpages at for updates with respect to the Services. Subscriber’s continued use of the Services after such updates will constitute its acceptance of the changes.
TERM AND TERMINATION
This Agreement shall be effective as of the date Subscriber accepts the terms herein or first accesses, downloads or uses any of the Services (the “Effective Date”) and shall remain in effect for so long as Subscriber uses or accesses any of the Services (the “Agreement Term”). Upon termination of the Agreement Term, Subscriber shall no longer be permitted to use or access the Services. The terms herein that contemplate obligations after the Agreement Term, including but not limited to Indemnification, Disclaimer, Limitation of Liability, Controlling Law and Severability, and Confidentiality, shall survive termination.
Subscriber shall own all of Subscriber’s message data, text, information, screen names, graphics, photos, profiles, audio and video clips, links and other content and materials that Subscriber submits and/or transmits using the Services, (collectively, “Data”), and MM acknowledges that it will not acquire any rights in Data. MM shall only use Data to fulfill its contractual obligations. Subscriber shall be fully liable and responsible to ensure that Data does not violate any law, regulation or the terms herein. MM shall not be responsible for maintaining backups of Data on MM systems. All Data will be processed and stored within the geographic limits of the United States of America. Upon the termination of Subscriber’s MM account, Data will no longer be stored on MM’S systems unless contracted by Subscriber to retain Data.
PRIVACY AND SECURITY
MM will comply with data breach laws and industry standards in the United States of America, including but not limited to HIPAA. MM and any subcontractors to whom Data is provided shall maintain a comprehensive data security program, which shall include reasonable and appropriate technical, organizational and security measures against the destruction, loss, unauthorized access or alteration of Data in the possession of MM or its subcontractors, and which shall be (i) no less rigorous than those maintained by MM for its own information of a similar nature, and (ii) no less rigorous than typical security standards in the industry.
MM may (i) issue a press release within sixty (60) days from the Effective Date regarding Subscriber’s selection and/or use of the Services, the content of which Subscriber and MM will mutually agree upon prior to publication, and (ii) include Subscriber’s name and/or logo in the list of customers that MM provides to its then current or prospective customers.
“Confidential Information” means any non-public data, information and other materials regarding the software, services, prices and discounts, or business of a party (and/or of third parties, to the extent a party is bound to protect the confidentiality of any third ’parties’ information) provided by a party, its employees, contractors or affiliates (“Disclosing Party”) to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. The parties agree, without limiting the foregoing, that any performance and security data, product roadmaps, source code, benchmark results, and technical information relating to the Services, including pricing information, shall be deemed the Confidential Information of MM. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party without the obligations of confidentiality prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure to the extent allowed by applicable law, and reasonably cooperates with the Disclosing Party in limiting such disclosure. Except as expressly authorized herein, the Receiving Party shall: (i) use the Confidential Information of the Disclosing Party only to perform hereunder or exercise rights granted to it hereunder; and (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care.
APPLE, INC. APP STORE
The terms and conditions of this Agreement (the “Terms”) apply to Subscriber’s use of the Services, including iOS applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
• Both Subscriber and MM acknowledge that the Terms are concluded between Subscriber and MM only, and not with Apple, and that Apple is not responsible for the Application or the Services;
• The Application is licensed to Subscriber on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for Subscriber’s private, personal, non-commercial use, subject to the Terms;
• Subscriber will only use the Application in connection with an Apple device that owned or controlled by Subscriber;
• Subscriber acknowledges and agrees that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
• In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, Subscriber may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to Subscriber will be to refund to Subscriber the purchase price, if any, of the Application;
• Subscriber acknowledges and agrees that MM, and not Apple, is responsible for addressing any claims Subscriber or any third party may have in relation to the Application;
• Subscriber acknowledges and agrees that, in the event of any third party claim that the Application or Subscriber’s possession and use of the Application infringes that third party’s intellectual property rights, MM, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
• Subscriber represents and warrants that he, she or it is not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Subscriber is not listed on any U.S. Government list of prohibited or restricted parties;
• Both Subscriber and MM acknowledge and agree that, in Subscriber’s use of the Application, Subscriber will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
• Both Subscriber and MM acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of the Terms, and that upon Subscriber’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against Subscriber as the third party beneficiary hereof.
Subscriber agrees to defend, indemnify, hold harmless and defend MM and its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers from and against any and all claims, charges, complaints, damages, losses, liabilities, costs and expenses (including attorneys’ fees and expert fees) due to, arising out of or relating in any way to Subscriber’s use of, or access to, the Services.
SUBSCRIBER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICES IS AT SUBSCRIBER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH SUBSCRIBER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND MOBIMED HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. MOBIMED DOES NOT WARRANT AGAINST INTERFERENCE WITH SUBSCRIBER’S ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED BY THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY UPDATE WILL CONTINUE TO BE MADE AVAILABLE, THAT MOBIMED IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THE SERVICES MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. SUBSCRIBER FURTHER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAY OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, FINANCIAL OR ENVIRONMENTAL DAMAGE. USING THE SERVICES FOR TRADING SECURITIES IS NOT PERMITTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MOBIMED OR AN APPROVED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICES PROVE DEFECTIVE, SUBSCRIBER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, IF APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
LIMITATION OF LIABILITY
Except where prohibited by law, in no event will MM, its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers be liable for any indirect, special, punitive, incidental, exemplary or consequential damages that result from: (1) the use of, or inability to use, the Services; (2) the performance of the Services; or (3) the conduct of other users of the Services, even if MM has been advised of the possibility of such damages. Subscriber assumes total responsibility for the use of the Services. Subscriber’s only remedy against MM for dissatisfaction with the Services is to stop using the Services. If, notwithstanding the terms herein, MM is found liable to Subscriber for any damage or loss which arises out of or is in any way connected with Subscriber’s use of the Services, MM’S liability shall in no event exceed $100 US Dollars. In addition to the forgoing limitations of liability, Subscriber agrees that Subscriber will not join any claim against MM with the claim of any other person or entity in a lawsuit, arbitration or other proceeding; that no claim Subscriber has against MM shall be resolved on a classwide basis; and that Subscriber will not assert a claim in a representative capacity against MM on behalf of anyone else.
ENTIRE AGREEMENT; MODIFICATIONS
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Any notice required or permitted to be given in accordance with this Agreement shall be in writing. Notices to MM shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: MobiMed, Inc., 6392 McLeod Dr., Suite 7, Las Vegas, NV 89120, U.S.A., Attention: Legal Department. For contractual purposes, Subscriber consents to receive communications from MM electronically. Notices sent to Subscriber shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to the address listed on Subscriber’s account. All notices will be deemed given: (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless MM is notified that the email address is invalid; (iii) five (5) days after having been sent by registered or certified mail (or ten (10) days for international mail); or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery). Either party may change its address for receipt of notice by notice to the other party in accordance with this Section.
The parties agree that a material breach of this Agreement adversely affecting MM’S intellectual property rights in the Services or the Confidential Information may cause irreparable injury to MM for which monetary damages would not be an adequate remedy and MM shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
This Agreement may not be assigned or transferred, in whole or in part, without the other party’s prior written consent, provided that MM expressly reserves the right to assign this Agreement in its entirety to a successor in interest of all or substantially all of its business or assets. Any action or conduct in violation of the foregoing shall be void and without effect. Subject to the foregoing, all rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns. MM may delegate any of its obligations hereunder, provided that it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this Agreement.
CONTROLLING LAW AND SEVERABILITY
This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflict of law provisions. Each party irrevocably agrees that any claim brought by it in any way arising out of this Agreement must be brought solely and exclusively in state or federal court located in Los Angeles County, California, and each party irrevocably accepts and submits to the sole and exclusive jurisdiction of each of the aforesaid courts in persona, generally and unconditionally, with respect to any action, suit, or proceeding brought by it or against it by the other party.
In the event any one or more of the terms or provisions contained in this Agreement shall be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement or any application thereof shall not in any way be affected or impaired, except that, in such an event, this Agreement shall be deemed revised in order to provide the party adversely affected by such declaration with the benefit of its expectation, evidenced by the provision(s) affected by such a declaration, to the maximum extent legally permitted.