This MediPortal, LLC (“MediPortal”) Patient Participation Agreement is entered into as of the date last signed below
(the “Effective Date”) between MediPortal and the user (“Subscriber”) of MediPortal’s Portal (“Portal”).
1. Subscription Service. Subject to the terms and conditions of this Agreement and during the Term only, MediPortal hereby provides Subscriber with (i) a limited, non-exclusive and terminable license to access and to use MediPortal’s online Portal solely for Subscriber’s personal use. MediPortal shall host the Portal and may update the functionality and user interface of the Portal from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Portal and Subscribers’ use of the Portal.
2. Restrictions. Subscriber shall not, nor assist another to, copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Portal or otherwise attempt to discover the source code thereof. Subscriber agrees that, as between MediPortal, and Subscriber, MediPortal shall own all rights, title and interest in and to the Portal.
3. Data Storage, License from Subscriber. MediPortal shall, at least daily, back up Subscriber Data and store such data for . MediPortal shall, in addition, deploy data replication techniques to ensure that current data is stored on multiple storage devices. Subject to the terms and conditions of this Agreement, Subscriber grants MediPortal a limited, non-exclusive license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Subscriber Data to the extent necessary to perform its obligations under this Agreement. MediPortal agrees that, as between Subscriber and MediPortal, Subscriber Data shall at all times be considered the property of Subscriber.
4. Term, Fee and Payment.
4.1. Term of Agreement. The term of this Agreement is from the Effective Date until from the commencement of the Subscriber’s use of the Portal, unless earlier terminated pursuant to Section 6, and will automatically extend for successive renewal terms of one (1) year each (“Renewal Term”) (collectively “Term”), unless Subscriber or MediPortal provides written notice of non-renewal to the other party at least six (6) months before the expiration of the then current term.
4.2. Fees and Payment. Fees for subscription to the Portal are free during BETA version. .
4.3. Taxes. Subscriber shall report and pay all sales, use, value added, and other taxes (excluding only those taxes based on MediPortal’s net income) designated, levied, or based upon a) any amounts payable under this Agreement, and/or b) Subscriber’s access to the Portal over the internet. Subscriber will indemnify, defend and hold harmless MediPortal from all claims and liability resulting from Subscriber’s failure to report or pay such amounts. As required by applicable law, MediPortal may collect taxes from Subscriber and remit same to the taxing authorities.
4.4. Late Payments. Any late payments shall be subject to a service charge equal to % of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less.
5. Terms of Service.
5.1. Subscriber Internet Access. Subscriber must have access to the Internet to use the Portal. MediPortal cannot guarantee optimal performance.
5.2. Accuracy of Subscriber’s Contact Information. Subscriber agrees to provide accurate, current and complete information on Subscriber’s legal name, address, e-mail address, and phone number, and maintain and promptly update this information if it should change.
5.3. E-mail. Subscriber agrees that MediPortal may provide any and all notices, statements, and other communications to Subscriber by e-mail at the e-mail address provided in Subscriber’s account. MediPortal shall be entitled to rely and act on all information and instructions provided to MediPortal from the e-mail address provided in Subscriber’s account.
5.4. Passwords, Access, and Notification. Subscriber must provide and assign a unique password, e-mail address and user name for use of the Portal. Subscriber is solely responsible for the confidentiality and use of all such passwords, e-mail addresses and user names. Subscriber shall immediately notify MediPortal if Subscriber becomes aware of any loss, theft or unauthorized use of any of such passwords, e-mail addresses or user names.
5.5. Subscriber’s Lawful Conduct. The Portal allows Subscriber to send Electronic Communications directly to MediPortal and to third parties. Subscriber agrees to comply with all applicable laws and governmental regulations relating to Electronic Communications. Subscriber agrees not to access the Portal by any means other than through the interfaces provided by MediPortal. Subscriber shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Portal available to any third party or unauthorized user, including but not limited to, by “mirroring” or “framing” any part of the Portal, or by creating Internet links to the Portal which include log-in information, user names, passwords, and/or secure cookies. Subscriber shall not upload, post, reproduce or distribute any information, Portal or other material protected by copyright or any other intellectual property right (including but not limited to rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Subscriber shall not in any way express or imply that any opinions contained in Subscriber’s Electronic Communications are endorsed by MediPortal. Neither Subscriber, nor someone acting on Subscriber’s behalf may use the Portal to target for solicitation any MediPortal subscribers for purposes of providing any competitive product. Subscriber shall ensure that any use of the Portal by Subscriber’s agents is in accordance with the terms and conditions of this Agreement.
5.6. Third-Party Portal. Subscriber agrees to use third party Portal necessary for accessing the Portal, including, but not limited to, “browser” Portal that supports a data security protocol compatible with the protocol used by MediPortal. Until notified otherwise by MediPortal, Subscriber agrees to use Portal that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by MediPortal and to follow logon procedures for services that support such protocols. MediPortal shall not be responsible for notifying Subscriber of any upgrades, fixes or enhancements to any such Portal or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet, which are not owned or operated by MediPortal.
5.7. Transmission of Data. Subscriber understands that the technical processing and transmission of Subscriber’s Electronic Communications is fundamentally necessary to Subscriber’s use of the Portal. Subscriber expressly consents to MediPortal’s interception and storage of Electronic Communications and/or Subscriber Data, and Subscriber acknowledges and understands that Subscriber’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by MediPortal. Subscriber acknowledges and understands that changes to Subscriber’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Subscriber further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. MediPortal shall not be responsible for any Electronic Communications and/or Subscriber Data which are delayed, lost, altered, intercepted or stored during the transmission of same across networks not owned or operated by MediPortal, including, but not limited to, the Internet.
5.8. Links/Third-Party Data. The Portal may provide, or third parties may provide, links to other World Wide Web sites or resources. MediPortal shall not be responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. In addition, MediPortal shall have no liability with respect to third party internet sites.
5.9. Confidentiality. Subscriber Data stored by MediPortal shall be deemed Confidential Information, except to the extent such information is (a) generally available to the public on a non-confidential basis through no fault of MediPortal, its independent contractors, agents or representatives, (b) independently developed by MediPortal, its independent contractors, agents or representatives without benefit of Subscriber Data, (c) rightfully received from another source on a non-confidential basis, (d) required to be disclosed pursuant to applicable law or governmental regulation, or (e) permitted by Subscriber to be disclosed. MediPortal shall not disclose Confidential Information to any third party. MediPortal shall implement reasonable security measures to protect Confidential Information and prevent its unauthorized disclosure. In the event MediPortal discovers a breach of security relating to Confidential Information, MediPortal shall immediately (a) notify Subscriber of such breach, including the extent of such breach and the information disclosed, lost, compromised or stolen, (b) investigate such breach, and (c) provide Subscriber with a report outlining measures to be implemented to protect against the recurrence of such breach.
6.1. Suspension for Delinquent Account. MediPortal reserves the right to suspend Subscriber’s access to and/or use of the Portal when any payment is due from Subscriber to MediPortal but unpaid, but only after MediPortal has provided Subscriber two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice.. Such suspension shall not relieve Subscriber of any payment obligations.
6.2. Suspension for Ongoing Harm. If Subscriber or anyone using Subscriber’s username and password causes or uses MediPortal’s owned or controlled Portal to be used in a denial of service attack, spamming or any illegal activity (collectively, “Harmful Activity”), Subscriber must cause the Harmful Activity to cease within 72 hours. If Subscriber fails to do so, MediPortal may suspend Subscriber’s access to the Portal and the facility hosting same until Subscriber has taken action that prevents continued Harmful Activity, provided, however, that such suspension of access will be as minimal as required, and only to the extent required to prevent the Harmful Activity. In such event, the parties will work together diligently and in good faith to resolve the issues causing the suspension. Upon such resolution, MediPortal will promptly restore Subscriber’s access to the Portal and hosting facility. Such suspension shall not relieve Subscriber of any payment obligations. Subscriber shall indemnify and hold harmless MediPortal from such Harmful Activity.
6.3. Handling of Subscriber Data in the Event of Termination. Upon termination of the Agreement and provided all amounts due from Subscriber have been paid, MediPortal shall allow Subscriber to download its Subscriber Data. Subscriber shall have one month from termination to download its Subscriber Data. Thereafter MediPortal shall delete all Subscriber Data.
6.4. Modification to or Discontinuation of the Portal. MediPortal reserves the right at any time and from time to time to modify, temporarily or permanently, the Portal. In the event that MediPortal modifies the Portal in a manner which removes or disables a feature or functionality on which Subscriber materially relies, MediPortal, at Subscriber’s request, shall use commercially reasonable efforts to substantially restore such functionality to Subscriber. In the event that MediPortal is unable to substantially restore such functionality (unless enjoined from doing so by a court of competent jurisdiction), Subscriber shall have the right to terminate the Agreement.
7. Warranties, Limitations and Exclusions.
7.1. Warranty. MediPortal warrants that the Portal will achieve in all material respects the functionality described in the documentation applicable to same. MediPortal does not warrant that the Portal will be error-free. Subscriber’s sole and exclusive remedy for MediPortal’s breach of the warranty contained in this section shall be that MediPortal shall be required to use commercially reasonable efforts to modify the Portal to achieve in all material respects the functionality described in the applicable documentation and if MediPortal is unable to provide such functionality, Subscriber shall be entitled to terminate the Agreement. MediPortal shall have no obligation with respect to a warranty claim unless notified via e-mail at of such claim within sixty (60) days of the first instance of any material functionality problem that would give rise to a warranty claim.
7.2. Security, Data Integrity and Backup Warranty. MediPortal shall use commercially reasonable efforts to safeguard and accurately maintain the integrity of Subscriber Data, utilizing, at a minimum, industry standard security and backup procedures.
7.3. Limitation of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PORTAL IS MADE AVAILABLE FOR SUBSCRIBER’S USE ON AN “AS IS” BASIS AND MEDIPORTAL MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SAME. MEDIPORTAL DOES NOT WARRANT THAT THE PORTAL IS ERROR-FREE OR THAT IT WILL MEET SUBSCRIBER’S REQUIREMENTS. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF MEDIPORTAL HAS AUTHORITY TO BIND MEDIPORTAL TO ANY ADDITIONAL OR OTHER REPRESENTATION OR WARRANTY CONCERNING THE PORTAL.
7.4. Limitation of Liability. The cumulative liability of MediPortal to Subscriber for any and all claims whatsoever related to or arising out this Agreement shall not exceed the last twelve months’ payments made under this Agreement by Subscriber to MediPortal.
7.5. Excluded Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND LOST REVENUE) EVEN IF SUCH HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE CLAIMS OR LOSSES.
8.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to principles of conflicts of laws. In the event of any civil action, venue and jurisdiction shall be had in the state courts of New York.
8.2. Entire Agreement. This Agreement constitutes the entire agreement between the parties to this Agreement with respect to the subject matter of this Agreement and supersedes any and all prior and contemporaneous representations, proposals, agreements, negotiations, advertisements, statements or understandings, whether oral or written made in respect of the subject matter hereof. This Agreement may not be amended by a purchase order or other similar document, unless same is duly signed by authorized signatories of both parties.
8.3. Notice. Any notices required or permitted under this Agreement must be in writing (which includes e-mail and fax) and will be effective when received at the receiving party’s address as herein noted.
8.4. Survival. Sections 2, 4.3, 4.4, 5.5, 6.3, 7.3, 7.4, 7.5 and 8 shall survive termination of this Agreement.
8.5. Severability. If any provision of this Agreement is held to be unenforceable on its face, all other provisions will nevertheless continue in full force and effect and said unenforceable provision, if possible, shall be construed in such a way as to be enforceable and most closely express the intent of the provision on its face.
8.6. Assignment. Except as otherwise permitted by this Agreement, Subscriber shall not assign, sublicense or otherwise transfer in whole or in part, whether voluntary, involuntary by operation of law or otherwise, this Agreement or any of its rights under this Agreement without the prior written consent of MediPortal, which shall not be unreasonably withheld.
8.7. Waiver. No delay or failure of either party in exercising any right under this Agreement, nor any partial exercise of a party’s rights, will be deemed to constitute a waiver of any rights granted under this Agreement or at law.
8.8. Headings. Headings are for convenience only and shall not be used in the interpretation of this Agreement.
8.9. Attorney’s Fees. The substantially prevailing party in any lawsuit arising from this Agreement shall be entitled to an award of reasonable attorney’s fees, whether or not the party’s attorney is a salaried employee.
“Subscriber Data” shall mean any Subscriber data or information of any nature whatsoever transmitted to and maintained by MediPortal.
“Electronic Communications” shall mean any electronic or digital transfer of signs, signals, text, images, sounds, data or intelligence of any nature.
“User” means an individual who enters a user name and password in order to gain access to the Portal. User names and passwords must be unique and not be shared by, between or among individuals. A User must logoff or logout of the Portal before again entering a user name and password to gain access to the Portal.
THE SUBSCRIBER ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS.