MEDWISE (“MEDWISE”, “designer”, “we”, “us” or “our”) provides marketing services for healthcare providers (the “Service”). The Proposal (the “Proposal”) sets forth the Service being purchased by the client who signed the Proposal (“you”, “your” or “Client”), the costs for such Service, and any other relevant details.
These terms of service (the “Terms”) are incorporated by reference into and made a part of any Proposal and govern the relationship between you and MEDWISE. All Proposals are subject to acceptance by MEDWISE, in its sole discretion. The Proposal, the Terms, and any documents or links referenced in such documents are together referred to as the “Agreement”.
If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to these Terms, (ii) you have read and understand these Terms, and (iii) you agree, on behalf of the Client, to these Terms.
The terms of the Proposal shall be effective for thirty days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
2. FEES AND CHARGES
In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the payment schedule set forth in the Proposal.
3. CONFIDENTIAL INFORMATION
Each party acknowledges it may receive certain confidential or proprietary technical and business information and materials of the other party. Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority.
4. RELATIONSHIP OF THE PARTIES
As part of the Service, MEDWISE may perform or assist in performing a function or activity on Client’s behalf that involves the use and disclosure of Protected Health Information (as defined in 45 C.F.R. 164.501; hereinafter, “PHI”). The parties hereto shall use or disclose such PHI as required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (the “Security Rule”) promulgated thereunder, and the Health Information Technology for Economic and Clinical Health Act (Division A, Title XIII and Division B, Title IV, of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) (the “HITECH Act”). Capitalized terms used but not otherwise defined in this Section 2 shall have the same meaning given to such terms in HIPAA, the HITECH Act, or any implementing regulations promulgated thereunder, including but not limited to the Privacy Rule and the Security Rule.
In connection with and by agreeing to these Terms, you and MEDWISE agree to be bound by the terms of an independent contractor, not an employee of Client or any company affiliated with Client. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
5. WARRANTIES AND REPRESENTATIONS
5.1. Client may provide content to MEDWISE for use in MEDWISE's provision of the Service, including but not limited to photos, images, data, text, and other types of works (“Content”). Client retains copyright and any other proprietary rights that Client may hold in the Content that Client provides to MEDWISE. By providing Content, Client hereby grants MEDWISE a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Client’s Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed).
5.2. Client is solely responsible for any Content that Client provides, and for the consequences of posting or publishing such Content. By providing Content, Client affirms, represents, and warrants that:
Client is the creator and owner of, or has the necessary licenses, rights, consents, and permissions, to use and to authorize MEDWISE to use and distribute Client’s Content as necessary to exercise the licenses granted by Client in this Section 3 and in the manner contemplated by MEDWISE, the Service, and these Terms; and Client’s Content, and the use of Client’s Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause MEDWISE to violate any law or regulation.
6.1 By Client. Client agrees to indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement.
6.2 By MEDWISE. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Designer in writing of the claim; (b) Designer shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Designer with the assistance, information and authority necessary to perform Designer’s obligations under this section. Notwithstanding the foregoing, Designer shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Designer.
6.3 Limitation of Liability. The services and the work product of MEDWISE are sold “as is.” In all circumstances, the maximum liability of Designer, its directors, officers, employees, design agents and affiliates (“designer parties”), to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of Designer. In no event shall Designer be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Designer, even if Designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
7. SUBSCRIPTION TERM AND TERMINATION
7.1 Subscription Term. This Agreement shall commence upon the Effective Date and shall remain effective until all subscriptions hereunder have expired or been terminated.
7.2 Terms of Purchased Subscription. Terms of subscription shall be specified on Proposal. Subscription will automatically renew for equal periods to previous subscription or term of one year (whichever is shorter)
7.3 Termination. This Agreement may be terminated for convenience at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or for cause if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
7.4 Post Termination. In the event of termination, Designer shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Designer or Designer’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation. In the event of termination for convenience by Client, Client shall pay in addition to the above an early termination fee equal to 25% of the total project fee, Schedule A shall not be effective, and Client shall not have rights to use Deliverables except upon written consent from Designer provided after such termination.
7.5 Post Termination Obligations. If this Agreement or Service is terminated for any reason, Client will pay to Designer any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and Client will discontinue all use of the Services. Upon termination of this Agreement or Subscription Service, Designer shall have the right to remove Subscriber’s account information and account settings after thirty (30) days, Subscriber will not be able to recover this data or content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’s terms and conditions). All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third party claims and limitations on liability) will remain in effect.
7.6 Post Termination Ownership. Client will retain exclusive ownership of all rights, title and interest in and to all Content which Client provides to MEDWISE for the provision of the Services, subject to the rights granted to MEDWISE herein. Upon termination or expiration of the Agreement, Client will own solely the domain name of the Provider Website; if the domain name was purchased and registered by MEDWISE, MEDWISE will take reasonable measures to assign the domain name to Client upon termination or expiration of this Agreement. If the domain name was purchased and registered by Client, Client will retain such ownership of the domain name.
For clarity, all other elements of the Provider Website, apart from any Content provided by Client, will be owned solely by MEDWISE, and will not be retained by Client upon expiration or termination of this Agreement. In addition, MEDWISE will retain exclusive ownership of all rights, title and interest of Content supplied by MEDWISE in the provision of the Service, and any visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and any other elements of the Service, subject to the licenses granted herein.
8.1 Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Designer’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
8.2 Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Georgia without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of Georgia. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Designer will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Designer shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.