Pathology Module Terms and Conditions
The Pathology Module Terms and Conditions hereinafter set forth, as amended from time to time (these “Terms and Conditions”), form a part of the Pathology Module Addendum between Medical Practice and Modernizing Medicine (the “Module Addendum” and together with these Terms and Conditions, this “Addendum”) and are hereby incorporated by reference into the Module Addendum, without the need for further action. These Terms and Conditions were last updated on December 16, 2015.
A. Payment Terms.
- Invoices. Modernizing Medicine will invoice Medical Practice following the end of each Monthly Period for the aggregate Pathology Subscription Fees payable by Medical Practice to Modernizing Medicine with respect to such Monthly Period (each, an “Invoice”). Medical Practice shall pay the amount specified in each Invoice to MMI on the date of such Invoice. The Pathology Subscription Fees shall be paid via electronic payment pursuant to the Electronic Payment Authorization Form on file with Modernizing Medicine; provided, however, that if an Electronic Payment Authorization Form is not on file with Modernizing Medicine that would permit the payment of such fees electronically then Medical Practice shall promptly complete, execute and deliver to Modernizing Medicine such Electronic Payment Authorization form as is requested by Modernizing Medicine.
- Taxes. The Pathology Subscription Fees are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”), and all payments to Modernizing Medicine are payable in full without reduction for Taxes. Medical Practice is responsible for payment of all Taxes, excluding taxes owed by Modernizing Medicine based on Modernizing Medicine’s income. If Modernizing Medicine has the legal obligation to pay or collect Taxes for which Medical Practice is responsible pursuant to this Addendum, the appropriate amount shall be invoiced to and paid by Medical Practice, unless Medical Practice provides Modernizing Medicine with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Overdue Payments. Any payment owed by Medical Practice to Modernizing Medicine hereunder and not paid to Modernizing Medicine from Medical Practice’s account when due (an “Overdue Payment”) may accrue, at Modernizing Medicine’s discretion, late charges at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension. If there are Overdue Payments outstanding for more than thirty (30) days, Modernizing Medicine reserves the right to suspend the provision of the Pathology Subscription Services until such amounts are paid in full. Medical Practice shall continue to be obligated to pay the fees set forth herein during such suspension period.
- Fee Changes. The amount of the Pathology Subscription Fees is subject to change at the end of the Initial Addendum Term (as defined below) and each Renewal Addendum Term (as defined below) with thirty (30) days notice from Modernizing Medicine, which notice may be given by the posting of such change on Modernizing Medicine’s website, by email or such other means of notice as Modernizing Medicine may reasonably employ.
B. Term; Termination.
- Term. The term of this Addendum shall begin on the Addendum Effective Date and shall terminate upon the expiration or earlier termination of the License Agreement (the “Addendum Term”); provided, however, that this Addendum shall be terminable by Medical Practice by providing at least ten (10) days prior written notice to Modernizing Medicine and such termination shall be effective on either (i) the last day of the Initial Term, if such notice was provided at least ten (10) days prior to the expiration of the Initial Term, or (ii) the last day of the current Renewal Term.
- Termination. Medical Practice acknowledges and agrees that this Addendum may be terminated by Modernizing Medicine at anytime, for any reason, in Modernizing Medicine’s sole discretion by providing at least ten (10) days prior written notice to Medical Practice. Notwithstanding the foregoing, this Addendum shall terminate immediately upon the termination of the License Agreement.
- Effect of Termination. Termination of this Addendum for any reason shall not affect Modernizing Medicine’s right to recover damages for events occurring before termination. Termination shall not relieve Medical Practice of the obligation to pay any fees or expenses accrued or payable to Modernizing Medicine prior to the effective date of termination. Upon termination or expiration of this Addendum for any reason, the Subscription Service Authorization shall terminate and Medical Practice shall not use or access, directly or indirectly, the Pathology Subscription Services.
C. Disclaimers. MODERNIZING MEDICINE DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO ANY MATTER CONTEMPLATED BY THIS ADDENDUM, INCUDING, WITHOUT LIMITATION, THE PATHOLOGY MODULE AND PATHOLOGY SUBSCRIPTION SERVICES. MODERNIZING MEDICINE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PATHOLOGY MODULE AND PATHOLOGY SUBSCRIPTION SERVICES ARE MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
NEITHER MODERNIZING MEDICINE NOR ITS AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE THE PATHOLOGY MODULE OR PATHOLOGY SUBSCRIPTION SERVICES. MODERNIZING MEDICINE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, OR RELIABILITY OF THE PATHOLOGY MODULE OR THE RESULTS OF ITS USE.
MODERNIZING MEDICINE AND ITS AFFILIATES MAKE NO GUARANTIES, REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE COMPLETENESS OR ACCURACY OF THE INFORMATION PROVIDED PURSUANT TO THE PATHOLOGY MODULE OR PATHOLOGY SUBSCRIPTION SERVICES.
IN NO EVENT SHALL MODERNIZING MEDICINE’S AND ITS PRESENT AND FORMER SUBSIDIARIES’, AFFILIATES’, DIRECTORS’, OFFICERS’, EMPLOYEES’, AND AGENTS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PATHOLOGY MODULE, PATHOLOGY SUBSCRIPTION SERVICES AND/OR THIS ADDENDUM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AGGREGATE PATHOLOGY SUBSCRIPTION FEES ACTUALLY PAID BY MEDICAL PRACTICE TO MODERNIZING MEDICINE UNDER THIS ADDENDUM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
IN NO EVENT SHALL MODERNIZING MEDICINE OR ITS PRESENT AND FORMER SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS HAVE ANY LIABILITY TO MEDICAL PRACTICE, ITS USERS OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY WHETHER OR NOT MODERNIZING MEDICINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS ADDENDUM APPLY TO MEDICAL PRACTICE TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH MEDICAL PRACTICE AND ITS USERS ARE LOCATED.
D. Hardware. Medical Practice is solely responsible for acquiring, installing and maintaining computer hardware that is adequate to support Medical Practice’s use of the Pathology Subscription Services. Modernizing Medicine will not provide maintenance for any of Medical Practice’s hardware. Medical Practice expressly acknowledges that Modernizing Medicine is not responsible for the safeguard, loss, or recovery of any data stored on Medical Practice’s hardware. Medical Practice is solely responsible for acquiring and maintaining such internet connections as are necessary for Medical Practice to use the Pathology Subscription Services.
E. Service Guidelines. Medical Practice and its Users shall use the Pathology Subscription Services solely for Medical Practice’s internal business purposes in the Territory as contemplated by this Addendum and shall not use the Pathology Subscription Services to: (i) send spam or any other form of duplicative or unsolicited communications; (ii) violate any law, rule or regulation; (iii) transmit through or post on the Pathology Subscription Services or Modernizing Medicine’s website(s) unlawful, immoral, libelous, tortious, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (iv) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (v) interfere with or disrupt the integrity or performance of the Pathology Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Pathology Subscription Services, computer systems or networks used to host or provide access to the Pathology Subscription Services; or (vii) harass or interfere with another user’s use and enjoyment of the Pathology Subscription Services or the other services provided by Modernizing Medicine. Modernizing Medicine may, without liability or notice to Medical Practice, remove or delete any material stored in the Pathology Module that Modernizing Medicine determines, in its sole discretion, violates any of the guidelines set forth in this Addendum. In addition to any other remedies Modernizing Medicine may have, Modernizing Medicine reserves the right to terminate this Addendum or terminate any or all of the logins provided to Medical Practice or any User immediately and without notice, if Modernizing Medicine becomes aware or determines that Medical Practice or any User is violating any of the foregoing guidelines. Medical Practice shall be responsible for verifying the accuracy of results produced using the Pathology Subscription Services and for proper use of any forms provided by Modernizing Medicine.
F. Modifications to Pathology Subscription Services; Subcontractors. Notwithstanding anything in this Addendum to the contrary, Modernizing Medicine may, in its sole discretion, modify, update, revise, enhance or change any aspect of the Pathology Subscription Services and the Pathology Module. Notwithstanding anything in this Addendum to the contrary, Medical Practice acknowledges and agrees that Modernizing Medicine is under no obligation to provide Medical Practice with access to any third party software, website or service as part of the Pathology Subscription Services and to the extent that the Pathology Subscription Services provide access to any third party software, website or service Modernizing Medicine reserves the right, without prior notice, to suspend, limit or cancel such access for any reason. Nothing in this Addendum will be deemed to restrict or limit Modernizing Medicine’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party. Medical Practice acknowledges that Modernizing Medicine may engage subcontractors to perform certain of the services contemplated herein.
G. Intellectual Property. Medical Practice acknowledges that in providing the Pathology Subscription Services, Modernizing Medicine utilizes: (i) the Modernizing Medicine name, the Modernizing Medicine logo, certain domain names, the product names associated with Modernizing Medicine’s products and services and other trademarks; (ii) certain information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, website content, visual interfaces, interactive features, graphics, compilations, computer code, website elements, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (which together with the Pathology Module shall be collectively referred to as “Modernizing Medicine IP”) and that the Modernizing Medicine IP is covered by intellectual property rights owned or licensed by Modernizing Medicine (“Modernizing Medicine IP Rights”). Except as otherwise expressly permitted herein, Medical Practice and its Users shall not, nor will they assist or encourage anyone else to: (i) sell, license, distribute, publicly perform or display, transmit, edit, adapt, modify, copy, translate or make derivative works based on the Modernizing Medicine IP; (ii) disassemble, reverse engineer, or decompile any of the Modernizing Medicine IP; or (iii) create Internet “links” to or from the Pathology Subscription Services, or “frame” or “mirror” any of Modernizing Medicine’s content which forms part of the Pathology Subscription Services (other than on Medical Practices’ own internal intranets). Additionally, Medical Practice and its Users are not entitled to: (i) sell, grant a security interest in or make or transfer reproductions of the Pathology Subscription Services to other parties in any way, nor to rent, lease or license the Pathology Subscription Services to others without the prior written consent of Modernizing Medicine; (ii) emulate or redirect the communication protocols used by the Pathology Subscription Services; (iii) use or access the Pathology Subscription Services in order to build a competitive product or service, (iv) copy any features, functions or graphics of the Modernizing Medicine IP or (v) exploit the Pathology Subscription Services or any of its parts for any commercial purpose without Modernizing Medicine’s express written consent. Nothing in this Addendum shall be construed to give Medical Practice or its Users any right to inspect, possess, use, or copy the source code or object code used to create or constituting the Pathology Module. Neither Medical Practice nor its Users shall apply any process, technique, or procedure designed to ascertain or derive the source code of the Pathology Module, or attempt to do any of the foregoing. Other than as expressly set forth in this Addendum, no license or other rights in the Modernizing Medicine IP Rights are granted to Medical Practice or its Users, and all such rights are hereby expressly reserved by Modernizing Medicine. Additionally, and for avoidance of doubt, as between Modernizing Medicine and Medical Practice, Modernizing Medicine shall at all times retain sole and exclusive ownership of, or, as applicable, sole and exclusive rights as a licensee or sublicensee of, all of its copyrights, trademarks, trade names, trade dress, patents, software, source code, object code and other intellectual property rights with respect to the Modernizing Medicine IP, including, without limitation, all of the proprietary material provided and/or displayed by Modernizing Medicine at the Pathology Subscription Services, affiliated web sites, extranet, marketing materials or otherwise. Medical Practice acknowledges and agrees that the Modernizing Medicine IP may contain certain licensed materials and Modernizing Medicine’s licensors may independently protect their rights in the event of any violation of this Addendum. Without limitation, Modernizing Medicine grants no license or other right under this Addendum to any government or government agency nor can any license or other right be acquired under a government contract or otherwise granted or provided to a government or government agency under this Addendum.
H. Data. Notwithstanding anything to the contrary in any agreement between Medical Practice and Modernizing Medicine or this Addendum, Medical Practice acknowledges and agrees that Modernizing Medicine (i) may use Pathology Data (as defined below) to create de-identified data in accordance with the HIPAA de-identification requirements; (ii) may use, create, sell, provide to third parties, and otherwise exploit Pathology Data provided same has first been de-identified in accordance with HIPAA and (iii) owns all right, title and interest in such de-identified Pathology Data and any data, information and material created by Modernizing Medicine with such de-identified Pathology Data. For purposes of this Addendum, “Pathology Data” means any electronic data, information or material that Modernizing Medicine receives from or on behalf of Medical Practice, Medical Practice’s patients and/or Medical Practice’s Users (or at any of their direction) through the Pathology Module or otherwise in connection with this Addendum, including, without limitation, (i) any electronic data, information or material entered into the Pathology Module by Medical Practice and its Users (or at any of their direction), (ii) any electronic data, information or material imported into the Pathology Module relating to Medical Practice or any of its patients, (iii) Patient Data and (iv) any electronic data, information or material provided or submitted by a third party through the Pathology Module relating to the Medical Practice or any of its patients.
I. Indemnification. Medical Practice shall indemnify and hold harmless Modernizing Medicine and its officers, directors, employees and agents, from and against any and all damages, liabilities, penalties, interest, fines, losses, costs and expenses (including attorneys’ fees and expenses), which arise from any claim or allegation arising, directly or indirectly, out of or relating to the subject matter of this Addendum, including, without limitation, (i) the use or operation of the Pathology Module by Medical Practice and/or its Users, (ii) a breach of this Addendum by Medical Practice or any of its Users, (iii) the accuracy, quality, integrity, legality, reliability or appropriateness of any content or data introduced to the Pathology Module by any User, (iv) violation of any applicable law, rule or regulation by Medical Practice or any of its Users, (v) the diagnosis and/or treatment of any of Medical Practice’s patients and/or (vii) the negligent acts or willful misconduct of Medical Practice or its personnel.
J. Feedback. If Medical Practice or any Users inform Modernizing Medicine of any errors, difficulties or other problems with the Pathology Module or Pathology Subscription Services, or provide any feedback or make any suggestions as to changes or modifications to the Pathology Module or Pathology Subscription Services, including beta or other in-development versions of the Pathology Module or Pathology Subscription Services (collectively, “Pathology Feedback”), then Modernizing Medicine shall own all right, title and interest in that Pathology Feedback. Medical Practice hereby irrevocably assigns and agrees to assign all of its right, title and interest in and to the Pathology Feedback to Modernizing Medicine. To the extent Medical Practice is unable to assign any of its rights in the Pathology Feedback to Modernizing Medicine, Medical Practice hereby grants to Modernizing Medicine a perpetual, irrevocable, worldwide license to sell, offer to sell, make, have made, import, use, disclose, copy, distribute, publicly perform, publicly display, modify, create derivative works of and otherwise fully exploit the Pathology Feedback. The Pathology Feedback shall be treated as Modernizing Medicine’s Confidential Information and Modernizing Medicine shall have the unrestricted right to use and disclose the Pathology Feedback for any purpose.
K. Relationship of the Parties. This Addendum does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties and the status of the Parties shall be independent parties to a contractual arrangement. Neither Party shall have the authority to bind the other Party by contract or otherwise.
L. Severability. If any provision of this Addendum is held by a court or arbitrator of competent jurisdiction to be unenforceable, such provision shall be changed by the court or by the arbitrator 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 Addendum shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a Party, in which case such Party may terminate this Addendum by notice to the other Party.
M. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, Modernizing Medicine shall be permitted to assign this Addendum without the prior written consent of Medical Practice: (i) to an Affiliate, parent company or subsidiary or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under this Addendum in breach of this Section shall be void and of no effect. Subject to the foregoing, this Addendum shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
N. Governing Law. Except as otherwise provided herein, this Addendum shall be governed by, and construed in accordance with, the laws of the State of Florida, without regard to its conflict of laws provisions.
O. Venue. The federal courts of the United States in and for the Southern District of Florida and the state courts of the State of Florida located in Palm Beach County, Florida shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Addendum. Each Party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
P. Authorization. Medical Practice represents and warrants that it has the legal power and requisite authority to enter into this Addendum and that this Addendum has been accepted on its behalf by a duly authorized representative of Medical Practice.
Q. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Addendum 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.
R. Force Majeure. Modernizing Medicine shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, cyber war or attack, terrorism, insurrection, sabotage, embargo, fire, flood, tropical storm, earthquake, tornado, hurricane, labor disturbance, interruption of or delay in 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 Pathology Subscription Services.
S. Amendment. No modification, amendment, or waiver of any provision of this Addendum shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted.
T. Alpha/Beta. The Parties acknowledge and agree that if the Parties previously entered into a Product Schedule (Alpha/Beta) for the product referred to as Derm Path Module to EMA that such Product Schedule (Alpha/Beta) is hereby terminated.
U. Survival. All terms of the License Agreement shall remain in full force and effect as supplemented hereby. In the event of a conflict between the terms of this Addendum and the License Agreement, the terms of this Addendum shall prevail. Sections A through U of these Terms and Conditions shall survive the expiration or termination of this Addendum].