Last Updated: November 13, 2023
Our Customer Terms of Service (this “Agreement”) is a binding contract between Videwell Inc. d/b/a Nurse-1-1, a Delaware corporation with an address of 101 Middlesex Tpke, Ste 6 PMB 369, Burlington, MA 01803-4914 (“we,” “us,” “our,” or “Nurse-1-1”) and you (“Customer,” “you,” or “your”). Nurse-1-1 and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” This Agreement governs your use of the Services and the Free Services, as applicable, and consists of the terms set forth below and the following, all of which are incorporated into and made a part of this Agreement by this reference:
● Nurse-1-1 Terms: These govern use of the Services by Customer, Authorized Users and End-Users. They are available at: https://legal.nurse-1-1.com/legal/terms-of-service.
● Data Processing Agreement (DPA): This explains how we process your personal data and is available at: https://legal.nurse-1-1.com/legal/data-processing-agreement.
● Privacy Policy: This explains the type of information we may collect from you, or that you may provide to us, and how we may use it. It is available at: https://legal.nurse-1-1.com/legal/privacy-policy.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW AND CEASE ALL USE OF THE SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
Definitions.
1.1. “Aggregated Statistics” means data and information related to Customer’s, Authorized Users’, and End-Users’ use of the Services that is used by Nurse-1-1 in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.2. “Authorized Users” means solely those named user(s) in the Nurse-1-1 Platform who are permitted by the Customer to use and operate the Services for or on behalf of the Customer.
1.3. “Billing Period” means the period for which Customer agrees to prepay fees under an Order Form. This may be the same length as the Subscription Term specified in the Order Form, or it may be shorter. For example, if Customer subscribes to a Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
1.4. “Customer Data” means information, data, and other content, in any form or medium, that is provided by or on behalf of Customer to Nurse-1-1 in connection with or through the Services but does not include Aggregated Statistics or End-User Data.
1.5. “Customer Address” means the Customer location defined in the Order Form
1.6. “Customer Name” means the Customer name defined in the Order Form
1.7. “Customer Website” means the Customer website defined in the Order Form
1.8. “Documentation” means Nurse-1-1’s user manuals, handbooks, and guides relating to the Services provided by Nurse-1-1 to Customer either electronically or in hard copy form/end user documentation relating to the Services.
1.9. “End-User Data” means data, information (including but not limited to Personal Data) and any material, content, phrases, entries uploaded to or created in the Services or transmitted through or stored in the Services (collectively “Input”) by any End-User, or otherwise made available, by or for Customer to End-Users through the Services.
1.10. “End-Users” mean customers or patients of the Customer.
1.11. “Fees” means the fees for the Service(s) payable to Nurse-1-1 under this Agreement and any Order Form.
1.12. “Free Services” means the Services or other products or features made available by Nurse-1-1 to Customer on an unpaid trial or free basis such as our basic package.
1.13. “Health Experts” means nurse practitioners, registered nurses, physician assistants, and other healthcare professionals made available by Nurse-1-1 via the Nurse-1-1 Platform.
1.14. “Nurse-1-1 IP” means the Services, the Documentation, and any and all intellectual property provided to Customer in connection with the foregoing. For the avoidance of doubt, Nurse-1-1 IP includes Aggregated Statistics, all data input to the Nurse-1-1 Platform by Customer End Users, and any information, data, or other content derived from Nurse-1-1’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
1.15. “Nurse-1-1 Platform” means Nurse-1-1’s proprietary software platform.
1.16. “Order Form” means any applicable ordering document submitted by or on behalf of Customer and accepted by Nurse-1-1 that specifies mutually agreed upon rates for certain Services and other commercial terms. Each Order Form executed by the parties is governed by this Agreement and incorporated into this Agreement by this reference.
1.17. “Personal Data” means any information relating to an identified or identifiable natural person under the Customer’s account, who can be identified, directly or indirectly.
1.18. “Services” means the software-as-a-service offering described in an Order Form.
1.19. “Subscription Fee” means the amount Customer pays for the Services.
1.20. “Subscription Term” means the initial term of Customer’s subscription to the applicable Services, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
1.21. “Third-Party Products” means any third-party products that are provided by third parties which interoperate with or are used in connection with the Services, provided with or incorporated into the Services.
2. Access and Use.
2.1. Provision of Access. Nurse-1-1 hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.7) license to access and use the Services during the Subscription Term, solely for use in accordance with, and subject to, the terms and conditions of this Agreement. Customer’s license to the Services provided hereunder expressly includes the right to embed the Nurse-1-1 Platform on its own Customer Website , mobile application, and other Customer-owned web properties (collectively, the “Customer Properties”), for the purpose of making the Nurse-1-1 Platform available for End-Users of such Customer Properties. The Customer Properties shall include co-branded pages with Nurse-1-1, which shall be approved in writing by Nurse-1-1 before deployment.
2.2. Documentation License. Subject to the terms and conditions contained in this Agreement, Nurse-1-1 hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.7) license to use the Documentation during the Subscription Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.3. Use Restrictions. Customer shall not use the Services or the Documentation for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any of its employees, consultants or agents to: (a) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services or Documentation; or (e) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.4. Nurse-1-1 Health Experts. Health Experts engaged by Nurse-1-1 shall be made available by Nurse-1-1 to chat with End-Users on the Nurse-1-1 Platform in accordance with the Nurse-1-1 Terms and the service level agreement set forth in the Order Form.
2.5. Reservation of Rights. Nurse-1-1 reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Nurse-1-1 IP.
2.6. Authorization and consent. The Customer is solely responsible to obtain the authorizations, licenses and consents, if and as required by any applicable law, to make the Services available to End-Users. When the Customer provides any Customer Data or End-User Data to Nurse-1-1, the Customer (regardless of whether such Customer Data or End-User Data comes from the Customer or an administrator operating on behalf of the Customer or the End-User) represents and warrants that the Customer has full authority to provide Nurse-1-1 with such Customer Data or End-User Data.
2.7. Access. The Customer understands and has become familiar with the technical requirements necessary to access and use the Nurse-1-1 Platform and has no objections in respect thereof. The Customer is aware of risks and threats connected with electronic data transmission.
2.8. Suspension. Notwithstanding anything to the contrary in this Agreement, Nurse-1-1 may temporarily suspend Customer’s and any Authorized User’s or End-User’s access to any portion or all of the Services if: (i) Nurse-1-1 reasonably determines that (a) there is a threat or attack on any of the Nurse-1-1 IP; (b) Customer’s or any Authorized User’s or End-User’s use of the Nurse-1-1 IP disrupts or poses a security risk to the Nurse-1-1 IP or to any other customer or vendor of Nurse-1-1; (c) Customer, or any Authorized User or End-User, is using the Nurse-1-1 IP for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (e) Nurse-1-1’s provision of the Services to Customer or any Authorized User or End-User is prohibited by applicable law; or (ii) in accordance with Section 5.1 (any such suspension described in subclause (i) or (ii), a “Service Suspension”). If practical under the circumstances, which Nurse-1-1 may determine in its sole discretion, Nurse-1-1 shall provide at least ten (10) days’ prior written notice of any Service Suspension to Customer and shall provide updates regarding resumption of access to the Services following any Service Suspension. Nurse-1-1 shall resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured to Nurse-1-1’s satisfaction, which it may determine in its sole discretion. Nurse-1-1 will have no liability to Customer for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User End-User may incur as a result of a Service Suspension.
2.9. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Nurse-1-1 may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. All right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained by Nurse-1-1. Nurse-1-1 agrees to provide access to the Aggregated Statistics to Customer as requested but in no event more frequently than weekly. Customer acknowledges that Nurse-1-1 may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Nurse-1-1 may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
3. Customer Responsibilities.
3.1. General. Customer is responsible for all acts and omissions of its employees, consultants and agents, and any act or omission by any such person that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all employees, consultants and agents aware of this Agreement’s provisions as applicable to such employees, consultants and agents duties in connection with this Agreement, and shall cause such employees, consultants and agents to comply with such provisions.
3.2. Third-Party Products. Nurse-1-1 may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow through provisions referred to in the Order Form, as amended from time to time. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
4. Service Levels; Support and Training.
4.1. Service Levels. Subject to the terms and conditions of this Agreement, Nurse-1-1 shall use commercially reasonable efforts to make the Services available at the service levels set forth in the applicable Order Form. Nurse-1-1 warrants that the Services shall operate substantially in conformance with the Documentation in all material respects.
4.2. Support. Nurse-1-1 agrees to use its commercially reasonable efforts to cooperate with Customer in resolving any failure of the Services to operate correctly and in accordance with the Documentation. Support access and turn around times are defined in the Order Form(s) for specific Services provided by Nurse-1-1.
5. Fees and Payment.
5.1. Fees. Customer shall pay Nurse-1-1 the Fees as set forth in an Order Form. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting Nurse-1-1’s other rights and remedies: (a) Nurse-1-1 may charge interest on the past due amount at the rate of 1% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (b) Nurse-1-1 may suspend Customer’s and its Authorized Users’ and End-Users’ access to any portion or all of the Services until such amounts are paid in full.
5.2. Fee Adjustments. The Fee will remain fixed during the initial term of Customer’s subscription unless: (a) the Customer exceeds monthly chat amounts as defined in the Order Form(s); (b) the Customer upgrades products or base packages; (c) Customer subscribes to additional features or products, including additional monthly chats; or (d) otherwise agreed to in the Customer’s Order Form. Nurse-1-1 may also choose to decrease the Fees upon written notice to the Customer.
5.3. Fee Adjustments at Renewal. Upon renewal of the Subscription Term, Nurse-1-1 may increase the Fees up to then-current list price. If this increase applies to the Customer, Nurse-1-1 will notify the Customer in writing at least thirty (30) days in advance of the Customer’s renewal and the increased Fees will apply at the start of the next renewal Subscription Term. If the Customer does not agree to this increase, either party can choose to terminate the Customer’s subscription at the end of the Customer’s then-current Subscription Term by giving the notice required in the ‘Notice of Non-Renewal’ section below.
5.4. Payment of Fees. If the Customer is paying by credit card, the Customer authorizes Nurse-1-1 to charge the Customer’s authorized payment method for all fees payable during the Subscription Term. The Customer further authorizes Nurse-1-1 to use a third party to process payments, and consent to the disclosure of the Customer’s payment information to such third party.
5.5. Payment against invoice. If the Customer is paying by invoice, Nurse-1-1 will invoice the Customer no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
5.6. Payment Information. The Customer will keep the Customer’s authorized payment method, contact information, billing information up to date for the payment of incurred and recurring fees, as applicable. Changes may be made by contacting sales@nurse-1-1.com. The Customer authorizes Nurse-1-1 to continue to charge the Customer’s authorized payment method for applicable Fees during the Customer’s Subscription Term and until any and all outstanding Fees have been paid in full. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
5.7. Suspension and Termination of Free Services. Nurse-1-1 may suspend, limit, or terminate the Free Services for any reason at any time without notice. Without limiting the generality of the foregoing sentence, Nurse-1-1 may terminate Customer’s subscription to the Free Services due to Customer’s inactivity.
5.8. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Nurse-1-1’s net income, capital gains, or employee withholdings. In the event Customer is exempt under applicable law from the payment of any applicable taxes, Customer must deliver to Nurse-1-1 a copy of Customer’s current and valid tax-exemption certificate or other evidence satisfactory to Nurse-1-1 of Customer’s exemption.
6. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
7.1. Nurse-1-1 IP. Customer acknowledges that, as between Customer and Nurse-1-1, Nurse-1-1 owns all right, title, and interest, including all intellectual property rights, in and to the Nurse-1-1 IP and, with respect to Third-Party Products, the applicable third-party owns all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
7.2. Customer Data. Nurse-1-1 acknowledges that, as between Nurse-1-1 and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Nurse-1-1 a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Nurse-1-1 to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics, provided that such uses do not identify Customer.
7.3. Feedback. If either Party or any of its employees or contractors or patients sends or transmits any communications or materials to the other Party by mail, email, telephone, or otherwise, suggesting or recommending changes to the Nurse-1-1 IP or the Customer Properties (respectively), including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), the receiving Party is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Each Party hereby assigns to the other Party, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and the receiving Party is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although such Party is not required to use any Feedback.
7.4. Trademark License.
7.4.1. Nurse-1-1 Marks. Nurse-1-1 hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable, royalty-free, worldwide right and license to use Nurse-1-1’s brands, trademarks, service marks, logos and trade names provided to Customer by Nurse-1-1 (collectively, the “Nurse-1-1 Marks”) solely in connection with fulfilling Customer’s obligations under this Agreement. All use of the Nurse-1-1 Marks by Customer will inure to the benefit of Nurse-1-1 and strictly comply with such reasonable usage guidelines as Nurse-1-1 may specify in writing from time to time. Nurse-1-1 will have the right from time to time to specify amended or additional usage guidelines in writing with respect to the Nurse-1-1 Marks, and all uses by Customer of Nurse-1-1 Marks will be subject to any such guidelines upon receipt thereof.
7.4.2. Customer Marks. Customer hereby grants to Nurse-1-1 a perpetual, non-exclusive, non-transferable, revocable, royalty-free, worldwide right and license to use Customer’s brands, trademarks, service marks, logos and trade names provided to Nurse-1-1 by Customer (collectively, the “Customer Marks”) in connection with fulfilling Nurse-1-1’s obligations under this Agreement; provided that such use is in strict compliance with Customer’s reasonable usage guidelines as Customer may specify in writing from time to time. Customer hereby permits Nurse-1-1 to display Customer’s logo on Nurse-1-1’s website and in confidential investor presentations or slides used for Nurse-1-1’s fundraising purposes.
8. Warranty; Disclaimer.
8.1. Nurse-1-1 represents, warrants, and covenants that, during the Subscription Term, the Services, including the Nurse-1-1 Platform, shall comply with all federal and state laws and regulations. Customer represents, warrants, and covenants that, during the Term, the Customer Properties shall comply with all federal and state laws and regulations.
8.2. THE SERVICES, CUSTOMER PROPERTIES, NURSE-1-1 IP AND NURSE-1-1 PLATFORM ARE PROVIDED “AS IS” AND, EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, STATUTORY, OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NURSE-1-1 MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, NURSE-1-1 IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S OR END-USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8.3. Without limiting the foregoing, Nurse-1-1 makes no representations or warranties about the accuracy, reliability, completeness or timeliness of the content, software, text, graphics, links, or communications provided on or through the use of the Services or the Nurse-1-1 Platform.
9. Indemnification.
9.1. Nurse-1-1 Indemnification.
9.1.1. Nurse-1-1 shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (collectively, “Third-Party Claims”): (a) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Nurse-1-1 in writing of the claim, cooperates with Nurse-1-1, and allows Nurse-1-1 sole authority to control the defense and settlement of such claim; or (b) brought by Customer End-Users as a result of information provided to such Customer End-Users by the Health Experts.
9.1.2. If such a claim under Section 9.1.1.(a) is made or appears possible, Customer agrees to permit Nurse-1-1, at Nurse-1-1’s sole discretion, to: (a) modify or replace the Services, or component or part thereof, to make it non-infringing; or (b) obtain the right for Customer to continue use. If Nurse-1-1 determines that neither alternative is reasonably available, Nurse-1-1 may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
9.1.3. Section 9.1.1.(a) will not apply to the extent that the alleged infringement arises from: (a) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Nurse-1-1 or authorized by Nurse-1-1 in writing; (b) modifications to the Services not made by Nurse-1-1; (c) Customer Data; or (d) Third-Party Products.
9.2.Customer Indemnification. Customer shall indemnify, hold harmless, and, at Nurse-1-1’s option, defend Nurse-1-1 from and against any Losses resulting from any Third-Party Claim (a) that the Customer Properties, or any use of the Customer Properties in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims, or (b) resulting from information or recommendations provided by Customer on Customer Properties (which, for clarity, excludes information provided by Health Experts on the Nurse-1-1 Platform) or based on the negligence or willful misconduct of Customer or any of its employees, consultants or agents.
9.3. Sole Remedy. THIS SECTION 9 SETS FORTH EACH PARTY’S SOLE REMEDIES AND Nurse-1-1’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability.
10.1. IN NO EVENT WILL CUSTOMER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY DAMAGES ARISING AS A RESULT OF INFORMATION PROVIDED BY NURSE-1-1’S HEALTH EXPERTS TO PATIENTS ON THE NURSE-1-1 PLATFORM.
10.2. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER NURSE-1-1 WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE TIMES THE TOTAL AMOUNTS PAID TO Nurse-1-1 UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3. Notwithstanding the foregoing, this Section 10 (Limitation of Liability) shall not apply to, limit, or affect either Party’s obligations under Section 6 (Confidential Information) or Section 9 (Indemnification), above.
11. Term and Termination.
11.1. Term. The initial Subscription Term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until one (1) year from such date . This Agreement will automatically renew for additional successive one-year Subscription Terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term.
11.2. Termination. In addition to any other express termination right set forth in this Agreement:
11.2.1. Either party may terminate this Agreement upon sixty (60) days written notice without cause;
11.2.2. Nurse-1-1 may terminate this Agreement, effective on written notice to Customer, if Customer: (a) fails to pay any amount when due hereunder, and such; failure continues more than thirty (30) days after Nurse-1-1’s delivery of written notice thereof; or (b) breaches any of its obligations under Section 2.3 or Section 6;
11.2.3. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
11.2.4. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Nurse-1-1 IP and, without limiting such Party’s obligations under Section 6, each Party shall delete, destroy, or return all copies of the other Party’s Confidential Information and, upon request, certify in writing to the other Party that such Confidential Information has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund, except in the case of an uncured or incurable breach of this Agreement by Nurse-1-1. Notwithstanding the foregoing, it is understood and agreed that Nurse-1-1 shall not have any obligation to return or delete Customer End-User names and email addresses provided by Customer to Nurse-1-1 in connection with the Services.
11.4. Survival. This Section 11 and Sections 1, 5, 6, 7, 8, 9, 10, 11 and 12, and any other provisions which, by their nature, are intended to survive termination or expiration of this Agreement will survive any termination or expiration of this Agreement.
12. Miscellaneous.
12.1. Entire Agreement. This Agreement, together with the Order Forms and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in these terms, an Order Form, the Nurse-1-1 Terms, the DPA, and the Privacy Policy, and any other documents incorporated by reference, the following order of precedence governs: (a) first, these terms; (b) second, the Nurse-1-1 Terms, (c) third, the Privacy Policy, (e) fourth the DPA, (f) fifth, the Order Form, and (g) sixth, any other documents incorporated by reference.
12.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) (i) if sent to Nurse-1-1 by Customer, must be in writing addressed to us at that address we designate from time to time in accordance with this Section, and (ii) if sent to Customer by Nurse-1-1, may be sent electronically by posting a notice on the Nurse-1-1 Platform or sending a message to the email address then associated with your account or in writing addressed to you at the address then associated with your account. All Notices to Nurse-1-1 must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
12.3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. In the event that any such failure or delay continues for more than thirty (30) days, the other Party may immediately terminate this Agreement without penalty.
12.4. Amendment and Modification; Waiver. Nurse-1-1 may, at its discretion, amend, modify, or supplement the terms and conditions of this Agreement from time to time and will provide Customer with written notice of such amendments, modifications, or supplements. Your continued use of the Services after the effective date of the applicable amendment, modification or supplement will be deemed acceptance thereof. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Massachusetts. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts located in the City of Boston, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12.7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Nurse-1-1; provided, however that this Agreement may be assigned by Customer in connection with the sale of substantially all of the assets, equity or business of Customer. Any purported assignment or delegation by Customer in violation of this Section will be null and void. No assignment or delegation will relieve Customer of any of its obligations hereunder. Subject to the foregoing limitations on assignment, this Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
12.8. Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
12.9. US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
12.10. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2.3 and Section 12.12, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
12.11. Non-Disparagement. Customer agrees not to disparage or otherwise denigrate Nurse-1-1, including its services and products.
12.12. Non-Solicitation and Restrictions on Hiring. During the term of this Agreement and for a period of one (1) year thereafter, Customer shall not (a) recruit or solicit any person who served as a Health Expert via the Nurse-1-1 Platform during the term of this Agreement for the purpose of hiring that Health Expert, either directly or on an independent contractor/consulting basis (except for any individual who, at such time, has not served as a Health Expert via the Nurse-1-1 Platform for a period of one year or longer), nor (b) hire, either directly or on an independent contractor/consulting basis, any employee of Nurse-1-1 (including any person who was an employee of Nurse-1-1 during the during the preceding one-year period).
12.13. HIPAA. The Parties acknowledge and agree that for the purposes of this Agreement, neither party is functioning as a business associate of the other. Notwithstanding the foregoing, the Parties agree to discharge their responsibilities under this Agreement in accordance with the Health Insurance Portability and Accountability Act of 1996 and all regulations promulgated thereunder.
12.14. Nurse-1-1 Policies. In the event that either of such Nurse-1-1 Terms or Nurse-1-1 Privacy Policy conflicts with any Customer policy in relation to access and use of the Services, the Nurse-1-1 policies shall control.
