MEND VIP Term and Conditions
Last Revised: May 27, 2020
The use of the services (the “MEND VIP Services”) of Mend VIP, Inc. (“MEND VIP”), including, without limitation, any websites or mobile applications it may provide, is subject to these terms and conditions (the “MEND VIP Terms”). By placing an order for MEND VIP Services (through the MEND VIP Services, a MEND VIP website, a MEND VIP mobile application, by email or otherwise) or using the MEND VIP Services, each purchaser or user of Mend VIP Services (a “Customer”) agrees to be bound by these MEND VIP Terms. (Mend VIP and Customer are referred to in this MEND VIP Addendum collectively as the “Parties” and individually as a “Party.”)
IF YOU ARE ENTERING INTO THESE MEND VIP TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE MEND VIP TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE MEND VIP TERMS, YOU MUST NOT ACCEPT THESE MEND VIP TERMS AND MAY NOT USE THE MEND VIP SERVICES.
1. Definitions. In addition to any other definitions specified in these MEND VIP Terms, the capitalized terms below used herein shall have the definitions ascribed thereto, respectively, as follows:
“Confidential Information” shall mean confidential or proprietary information of a disclosing Party that a receiving Party receives or becomes aware of in the course of the performance of the MEND VIP Services pursuant to these MEND VIP Terms, except for: (i) information that is or becomes generally available to the public through no fault or action of the receiving Party; or (ii) information that is or was acquired by the receiving Party on a non-confidential basis from sources other than the disclosing Party or its customers in connection with these MEND VIP Terms; or (iii) any information that was already known to the receiving Party prior to disclosure hereunder; or (iv) any information that is or was independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. With respect to Customer, Confidential information shall include information transmitted using the MEND VIP Services by or respecting Customer’s Users and Consumers.
“Consumers” shall mean Persons interacting with Customer through the MEND VIP Services for the purpose of obtaining (or inquiring about) professional services provided by Customer.
“Content” shall mean any and all human readable audio and/or visual elements of a web site, created or owned by any Person, including, without limitation, any text, graphics, images, illustrations, photographs, animations, video, audio or audiovisual works designs, logos, information, and other content.
“Customer Data” shall mean the information (including Content) submitted to the MEND VIP Services by Customer, Customer’s Users or Consumers or otherwise provided or made accessible to Mend VIP for use in connection with the delivery of any MEND VIP Services.
“Marks” shall mean a Party’s trade names, trademarks or service marks.
“Mend VIP Software” shall mean the proprietary software used by Mend VIP in connection with the MEND VIP Services.
“Mend Technology” shall mean the past, present and future technology employed by Mend VIP in the performance of the MEND VIP Services, including all Mend VIP Software, all copyrightable or otherwise legally protectable elements of the MEND VIP Services and all other tangible or intangible materials related to the MEND VIP Services and all other Mend VIP intellectual property.
“Order” shall mean an order for MEND VIP Services submitted by Customer (through the MEND VIP Services, a MEND VIP website, a MEND VIP mobile application, by email or otherwise) and accepted by MEND VIP specifying the MEND VIP Services to be provided to Customer.
“Person” shall mean any corporation, business entity, natural person, firm, joint venture, partnership, trust, unincorporated organization, association, government or any department or agency of any government.
“Subscriptions” shall mean the subscriptions for MEND VIP Services specified in an Order.
“Subscription Fees” shall mean the fees applicable to the Subscriptions, as specified in an Order.
“Subscription Term” shall mean the term of a Subscription, as specified in an Order, subject to the renewal or termination of such term pursuant to these MEND VIP Terms.
“Users” shall mean the users designated by Customer for use of the MEND VIP Services pursuant to a Subscription in accordance with these MEND VIP Terms.
2. Intellectual Property.
(a) During the Subscription Term, and subject to these MEND VIP Terms, (a) Mend VIP hereby grants Customer and Customer’s Users a non-exclusive right to use the MEND VIP Services to the extent of the Subscriptions and to install, download and use any Mend VIP Software provided by Mend VIP for use in connection with the MEND VIP Services, and (b) Customer hereby grants to Mend VIP a non-exclusive, revocable license to use Customer’s Marks, Customer’s Content and Customer Data to the extent necessary and appropriate for the performance of the MEND VIP Services. Except to the extent expressly provided in these MEND VIP Terms, neither Party grants to, or acquires from, the other Party any right, title or interest in the any trademarks, patents, copyrights, software, trade secrets and other intellectual property rights.
(b) Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) to Mend VIP with respect to its products and services, including the MEND VIP Services. Feedback is voluntary. Mend VIP may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants Mend VIP an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Mend VIP’s business, including the enhancement of the MEND VIP Services.
3. Confidentiality; Anonymous Data.
(a) Except as authorized by Customer (in these MEND VIP Terms or otherwise) or required under applicable law, Mend VIP shall not disclose any of Customer’s Confidential Information to anyone other than Mend VIP’s employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform the MEND VIP Services. Mend VIP will implement and maintain reasonable measures to secure Customer’s Confidential Information against loss or unauthorized access or disclosure. No protected health information (PHI) shall be made available to Mend VIP by Customer unless a Business Associate Agreement (“BAA”) is in effect with respect to the submission of such PHI to Mend VIP.
(b) In the course of performing the MEND VIP Services, Mend VIP may compile anonymous statistical data relating to the MEND VIP Services provided to Customer (“Anonymous Services Data”). Such Anonymous Services Data may be aggregated with the anonymous statistical data relating to the MEND VIP Services provided to Customer and Mend VIP’s other customers (the “Aggregated Service Data”). Customer hereby grants Mend VIP a non-exclusive, perpetual, irrevocable, royalty-free license to gather, use, reproduce, store, publish, license and transmit the Anonymous Services Data included within the Aggregated Service Data in a manner that does not reveal or allow to be inferred Customer’s identity or the identity of any User, Consumer or other Person.
(a) Customer agrees to pay MEND VIP the Subscription Fees specified with respect to the Subscriptions purchased pursuant to each Order submitted by Customer. Failure to pay applicable Subscription Fees will result in the termination of Customer’s Subscriptions.
(b) Customer agrees that MEND VIP may store and, when applicable, obtain payment using the payment method (e.g. credit card) specified by Customer to avoid interruptions in MEND VIP Services and to pay for additional Subscriptions Customer may purchase. Except as otherwise provided in these MEND VIP Terms, each Subscription will automatically renew at the end of each Subscription Term for an additional Subscription Term, and Customer’s payment method will automatically be charged at the start of each Subscription Term for the fees and taxes applicable to the Subscription Term. To avoid future charges for Subscription Fees, Customer must provide MEND VIP notice of Customer’s intention not to renew the applicable Subscriptions before the renewal date of the Subscription Term by e-mail to: email@example.com.
(c) Purchases of MEND VIP Services are nonrefundable.
(d) Any invoiced amount that is not received by MEND VIP when due will be subject to a late payment fee of 1.5% per month or the maximum rate permitted by law, whichever is lower.
(e) If any amount owing by Customer is not paid when due, MEND VIP may, without limiting its other rights and remedies, suspend the MEND VIP Services until such amounts are paid in full.
(f) Except as expressly specified with respect to an Order, Orders do not reflect any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchase and use of MEND VIP Services, excluding any taxes based upon MEND VIP’s personal property ownership or net income. If MEND VIP has the legal obligation to pay or collect Taxes for which Customer is responsible, MEND VIP will invoice Customer for, and Customer will promptly pay, the amount of such Taxes unless Customer provides MEND VIP with a valid tax exemption certificate authorized by the appropriate taxing authority. MEND VIP may calculate Taxes payable by Customer based on the billing information that Customer provides at the time an Order is submitted.
(g) All Subscription Fees are in United States Dollars.
(h) MEND VIP reserves the right to change Subscription Fees at any time. MEND VIP will notify Customer in advance of any increase in Subscription Fees. Any change in Subscription Fees will take effect after the conclusion of the then current Subscription Term of a Subscription unless Customer elects not to renew the Subscription Term of such Subscription in accordance with these MEND VIP Terms.
(i) No purchase order will be required in order for Customer to make payment(s) or otherwise to perform its obligations with respect to an Order.
(j) Use of the Services may be made available through a web browser or an application running on a mobile device (including SMS). Customer is solely responsible for all costs incurred by Customer with respect to Customer’s usage of the Services on a mobile device or computer, including data usage fees and other telecommunications fees.
5. Subscription Term; Termination. The Subscription Term shall be as set forth in the Order, subject to earlier termination of the Subscription Term pursuant to these MEND VIP Terms. The Subscriptions and these MEND VIP Terms may be terminated at any time (a) by MEND VIP upon Customer’s failure to pay applicable Subscription Fees when due; or (b) by either Party upon material breach by the other Party of these MEND VIP Terms, if the breaching Party fails to cure such material breach within thirty (30) calendar days after written notice from the non-breaching Party specifying the nature of such material breach. Termination of the Subscriptions or these MEND VIP Terms shall not release either Party from any liability for breach of obligations under these MEND VIP Terms. Upon any termination or expiration of the Subscription Term, all licenses granted under these MEND VIP Terms (except for the licenses respecting Feedback and Anonymous Service Data) shall terminate.
6. Use of Services and Content.
(a) Each Party will comply with all applicable governmental laws and regulations that relate to the performance of such Party’s obligations or the exercise of such party’s rights under these MEND VIP Terms.
(b) Customer shall be responsible for Users’ compliance with these MEND VIP Terms. Customer and Customer’s Users (i) will not, except as expressly permitted in these MEND VIP Terms, grant any third party access to the MEND VIP Services, (ii) will use the MEND VIP Services exclusively for the delivery of healthcare services by qualified personnel in accordance with applicable professional rules and standards, (iii) will use commercially reasonable efforts to prevent unauthorized access to or use of the MEND VIP Services and notify Mend VIP promptly of any such unauthorized access or use, and (iv) will not harm, or attempt to discern proprietary information embodied in, the MEND VIP Services or any Mend VIP Technology.
(c) Customer shall be solely responsible for any Customer Data that Customer or any of Customer’s Users create, store, transmit or display while using the MEND VIP Services. Neither Customer nor any of its Users shall submit to the MEND VIP Services or otherwise deliver to Mend VIP any Content that is obscene or violates or infringes upon any privacy rights, intellectual property rights or other legal rights of any Person. Mend VIP reserves the right, but shall have no obligation, to pre-screen, review, flag, filter, modify, refuse or remove any Content from the MEND VIP Services.
(d) If a Subscription for MEND VIP Services is provided to Customer without charge or if specified in an Order with respect to a Subscription for MEND VIP Services, MEND VIP may serve or permit third parties to serve advertisements and other content to Consumers through the MEND VIP Services. MEND VIP retains all rights with respect to the placement of ads and any revenues associated with the placement of ads. Advertising will be displayed in a manner that does not interfere with the use of the MEND VIP Services.
(e) Mend VIP utilizes technology for tracking actions occurring in connection with the utilization of the Mend VIP Services.
(f) Mend VIP has the right to update and to modify the Mend VIP Software and the Mend VIP Technology and the manner in which they are used to provide the MEND VIP Services.
(g) The MEND VIP Services do not include any computers, devices and data connections that are needed for Customer, Users or Consumers to access and utilize the MEND VIP Services.
(i) Customer shall use reasonable efforts and provide sufficient personnel and resources necessary to assist Mend VIP in providing the MEND VIP Services. To the extent that any of Mend VIP’s obligations, including the delivery of the MEND VIP Services, is dependent upon Customer’s performance of any obligation, the performance of such obligations by Mend VIP will be subject to Customer’s timely performance of such obligation.
(j) Mend VIP may, in its sole discretion, immediately suspend Customer’s access to the MEND VIP Services for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the MEND VIP Services; (b) to comply with any law, regulation, court order, or other governmental request; or (c) to protect Mend VIP from potential legal liability. Mend VIP will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the MEND VIP Services. Mend VIP will promptly restore access to the MEND VIP Services as soon as the event giving rise to suspension has been resolved.
7. Indemnification. Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party (the “Indemnified Party”) and its successors, subsidiaries, affiliates, co-branders, contractors, employees, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including reasonable attorneys’ fees)(a “Claim”) arising out of the violation of any intellectual property rights or privacy rights of any Person by Indemnifying Party. In case of any Claim subject to indemnification under these MEND VIP Terms, the Indemnified Party will provide the Indemnifying Party reasonably prompt notice of the relevant claim. Indemnifying Party will defend and/or settle the Claim at its own expense. Each party will cooperate in good faith with the other to facilitate the defense of any such Claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnifying Party upon request. Claims may be settled without the consent of the Indemnified Party, unless the settlement includes an admission of wrongdoing, fault or liability.
8. Disclaimer. EXCEPT AS MAY BE EXPRESSLY PROVIDED IN THESE MEND VIP TERMS, MEND VIP MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE MEND VIP SERVICES HEREUNDER FOR A PARTICULAR PURPOSE.
9. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY UNDER THESE MEND VIP TERMS OR WITH RESPECT TO THE MEND VIP SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT THAT HAS BEEN PAID TO MEND VIP IN CONNECTION WITH THE MEND VIP SERVICES IN THE LAST SIX (6) MONTHS PRIOR TO RECEIPT OF NOTICE OF THE CLAIM FOR SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS OF EITHER PARTY SET FORTH IN SECTION 7.
(a) These MEND VIP Terms shall be governed by the laws of the State of Florida, without regard for its conflict of laws rules. Any action arising under or relating to these MEND VIP Terms shall lie within the exclusive jurisdiction of the State and Federal Courts located in Orange County, Florida. In the event of legal proceedings in connection with the enforcement or interpretation of these MEND VIP Terms, in addition to all other remedies, the prevailing party shall be entitled to recover from the other party all of its costs and expenses incurred in connection with such proceedings, including reasonable attorneys’ fees.
(b) If any provision of these MEND VIP Terms is found by a court to be unenforceable or invalid, then such provision shall be severed and these MEND VIP Terms amended to the extent necessary to render the same lawful or reasonable, and these MEND VIP Terms shall be enforced as amended.
(c) Any amendment, supplement or modification of or to any provision of these MEND VIP Terms, any waiver of any provision of these MEND VIP Terms, and any consent to any departure by the Parties from these MEND VIP Terms, shall be effective only if it is made or given in writing and signed by both Parties. No waiver of any breach or performance shall be deemed a waiver of the same breach or performance in the future or of any other breach or performance. No waiver of any breach or performance shall be deemed a waiver of the same breach or performance in the future or of any other breach or performance.
(d) These MEND VIP Terms shall be binding upon the Parties hereto, and their approved successors and assigns, and any such successor or assign shall expressly assume in writing the performance of all the terms and conditions of these MEND VIP Terms required to be performed by the assigning Party. No Party may assign these MEND VIP Terms or delegate its obligations under either to any third party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, the consent of a Party shall not be required in connection with any transaction involving the acquisition of all or substantially all of the assets of or equity interests in the other Party.
(e) There are no third party beneficiaries to these MEND VIP Terms.
(f) Nothing contained in these MEND VIP Terms will be deemed to establish a partnership, joint venture, association or employment relationship between the Parties.
(g) Neither Party shall be liable for failure to perform its obligations hereunder if such failure is the result of strikes, riots, fires, explosions, acts of God, war, governmental action, labor conditions, or any other cause beyond the reasonable control of such Party.
(h) These MEND VIP Terms, each Order submitted by Customer and the BAA, if any, entered into by the Parties constitute the entire understanding of the Parties, replace all prior agreements of the Parties with respect to the subject matter hereof, and may only be amended by an instrument in writing executed by both Parties.
(i) The headings of the several sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of these MEND VIP Terms.
(j) Sections of these MEND VIP Terms which, by their nature, are intended to govern the relationship of the Parties after the termination of these MEND VIP Terms, including, but not limited to, those related to confidentiality, intellectual property, Aggregate Service Data, disclaimers and limitations of liability, shall survive the termination of these MEND VIP Terms.