MDS MEDICAL INC. TERMS
By subscribing to an MDS Medical Website, you are agreeing to the terms and conditions below - so please read them carefully.
The MDS Medical Website Agreement (the "Agreement") is entered into by and between MDS Medical, Inc., an Arizona corporation with offices at 19820 N. 7th St., Suite 100 Phoenix, AZ 85024 and the entity agreeing to the terms herein (the "Client"). This Agreement is effective as of the date which you subscribe and pay for the services as indicated by your payment confirmation. If you are accepting on behalf of a company, your employer, or another individual, you warrant that you have legal authority to bind said entities to the terms and conditions of this Agreement.
PART A. DEFINITIONS
Client Data means any data that Client loads or enters into the Service and all results from processing such data, including compilations and derivative works thereof.
Website Order means the Website Order for Client's initial subscription to the Service and any future Website Orders that may be executed manually by the Parties in hardcopy form.
Personnel means Client employees.
Service means website and email design, hosting, and maintenance..
Subscription Period means the period starting with the date in which Client makes initial subscription payment.
Monthly Maintenance means the agreed labor time for MDS to make updates, modifications, and revisions to the Service.
User means Personnel who use the Service through email addresses issued under this Agreement.
Healthcare Provider means an ambulatory or inpatient facility with licensed healthcare providers on-site, whose primary objective is patient care.
PART B. TERMS AND CONDITIONS
a. EFFECTIVE DATE AND TERM. The Effective Date of this Agreement shall be the first day in which MDS receives initial monthly subscription payment, or completed form for a free 1 page ad-supported website subscription. Agreement shall continue in full force and effect for an initial Term of twelve (12) months from the Effective Date.
b. RENEWAL. This Agreement shall be automatically renewed for twelve (12) months, unless terminated by either party, by giving thirty (30) days written notice to the other party prior to the expiration of the initial Term or any successive Terms. Notwithstanding anything contained herein to the contrary, this Agreement may be terminated by either party at any time upon thirty (30) days written notice following the expiration of the initial Term.
b. LICENSED MEDICAL PRACTICE. Client certifies that website represents an authorized Healthcare Provider in the United States, and agrees to provide MDS with NPI number, the standard unique identifier for health care providers. The National Plan and Provider Enumeration System (NPPES) collects identifying information on health care providers and assigns each a unique National Provider Identifier (NPI). An unlicensed Healthcare Provider or failure to maintain a current NPI represents a material breach of this Agreement.
PART C. SERVICE DESCRIPTION
I. SERVICES PROVIDED BY MDS. Client will subscribe to and pay for the Service using the Website Order form and payment processing gateway provided on the MDS website or by executing a manual payment through the MDS accounting department.
a. Additional Service. Additional orders may be entered into by the Parties to subscribe to additional or different features of the Service. Unless designated as replacing a specific outstanding Website Order, a new Service will be considered in addition to currently outstanding Service.
b. Website Design. MDS agrees to design and launch Client medical website per the Website Design Questionnaire provide by Client following the Effective Date of this Agreement, and additional materials, forms, and images provided by Client. MDS makes no representations, promises, or warranties regarding the image quality or display quality of any images provided by Client. MDS and Client agree to three (3) reasonable revisions after initial mock-up provided to Client. MDS reserves the right to determine what is a "reasonable" revision. Should MDS deem a revision to be "unreasonable" for the scope of this project as it is intended, Client will be notified and provided with an opportunity to purchase additional labor services.
c. Hosting. MDS agrees to supply website and email hosting services to Client for up to 500MB of space per website. Additional space may be purchased for an additional cost. Client agrees that MDS may modify hosting space or setup from time to time, and Client will be notified in advance of any downtime of website to accommodate server changes.
d. Domain Names and Transfers. MDS agrees to supply and renew one (1) domain name under the Term of this Agreement for no additional charge for all but the free 1 page ad-supported websites. If Client owns the domain name to be used, it is Client's responsibility to properly direct the DNS to point to the MDS webservers that house Client's website. Troubleshooting or manual DNS modifications will be billed separately as I.T. Services. Any issues regarding domain transfer, domain unavailability, or renewal of a previously purchased domain name should be addressed to the appropriate domain registrar and not MDS.
e. Email Setup. MDS agrees to setup initial Client administration email address and convey instructions for maintaining and adding/deleting user accounts. If applicable, email administration, changes, backups, and maintenance labor time will be deducted from Monthly Maintenance time.
II. MONTHLY MAINTENANCE. Client is permitted up to thirty (30) minutes of MDS labor time for Monthly Maintenance toward changes, updates, and modifications to the Service under this Agreement for all subscriptions except for the 1 page ad-supported website.
III. MDS LINK. Client agrees that MDS will house two text links within the footer of the website for all website subscriptions. These text links are not removable for any reason and may be modified by MDS from time to time.
IV. AD SUPPORTED WEBSITES. For Clients subscribing to the 1 page ad supported websites, Client agrees that MDS will use a space of varying size on client's website to display ads, either from an ad network (such as Google AdWords) or a display ad from an MDS advertiser. The space and location of the ad(s) may vary due to the customized nature of each Client website.
V. PERMITTED USE. Subject to the terms and conditions of this Agreement, Client is granted the following usage rights for the Service described on the MDS website and the Website Order form:
a. Email and Website Access. Client and website visitors have unlimited access to website. Client's Personnel may access and use the Service and email addresses through any standard web browser.
b. Usage Rights. Client’s Personnel may access and use the Service through email addresses and any standard web browser. Client is responsible for all activity occurring under its User IDs/email addresses.
c. Copyright Liability. Client represents that all content, images, and graphics provided to MDS for use on its website are the legal property of Client. Client agrees that MDS is in no way responsible for copyright infringement for any content provided by Client for use on an MDS website. Client accepts all legal responsibility for content, images, graphics, and data contained in its website.
VI. TECHNICAL SUPPORT. Customer's designated representative shall have access to MDS’s technical support web site (http://support.mdsmedicalsoftware.com) and may use call-in technical support during normal business hours.
a. Certain Conditions. MDS shall not be obligated to provide support if: (i) the error results from operator error, errors in Client Data or software not supplied by MDS or use that is not in accordance with the terms and conditions of this agreement; or (ii) the Client has failed to pay any required fee or is otherwise in default of this Agreement. To the extent, if any, that the Service is third party software (such as operating systems or third party data or applications), it is acknowledged that MDS's performance may be impacted by the level of support provided by such third parties. Support Service does not include preparation of Client Data, configuration or customization of Service features needed to function in Client's production environment. Client certifies that the medical website is intended to educate patients, prospective patients, and other healthcare providers on its patient care services and that is main business is that of a Healthcare Provider, and is licensed within the United States.
VII. RESERVATION OF RIGHTS. MDS expressly reserves all rights in the Service not specifically granted to Client. It is acknowledged that all rights, titles and interest in the Service will remain with MDS (or third party suppliers, if applicable) and that the Service is licensed on a subscription basis and not "sold" to Client. MDS expressly reserves all rights in the MDS Data, code, website graphics, and website layout code and ideas, except the limited right of Client to use the MDS Data in operating the Service features for Client’s benefit. Unless specifically agreed in writing, each Party's exclusive ownership rights extend to any update, adaptation, translation, customization or derivative work thereof.
VIII. FEES AND PAYMENT.
a. Subscription Fees. Unless otherwise expressly stated on an Order Form, Client will pay Monthly Fees for the Service, each month in advance. Subscription Fees are invoiced recurring automatically according to the Effective Date, typically one month. Manual Invoices are payable net Fifteen (15) days. Any future Order Forms shall be at MDS's then-published rates or as otherwise agreed in the Order Form.
b. Late Payment. Client may not withhold or "setoff" any amounts due hereunder. MDS reserves the right to suspend Service until all past due amounts are paid in full. Any late payment shall be subject to any costs of collection (including legal fees of 17.5% pre-filing, or 35% if formal proceedings are filed) and shall bear interest at the rate of one (1) percent per month or fraction thereof until paid.
c. Refunds. Subscription fees are nonrefundable.
IX. CONFIDENTIAL AND PROPRIETARY INFORMATION. For purposes of this Section, a Party receiving Confidential & Proprietary Information (as defined below) shall be the “Recipient" and the Party disclosing such information shall be the "Discloser".
a. Acknowledgement. Client hereby acknowledges that the Service (including any Documentation, source code, translations, compilations, partial copies and derivative works) contains confidential and proprietary information belonging exclusively to MDS (or its designated third party supplier), and MDS hereby acknowledges that Client Data contains confidential and proprietary information belonging exclusively to Client or relating to its affairs (in each case, "Confidential & Proprietary Information"). Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Confidential & Proprietary Information; (ii) information in the public domain through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it.
b. HIPAA Compliance. MDS warrants and represents that it will use its reasonable commercial efforts to comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). All patient information and data provided by Client to MDS shall be kept confidential and shall not be disclosed to anyone except to the extent necessary for MDS to perform its obligations hereunder.
X. WARRANTIES. MDS represents and warrants during the Subscription Period that it will use best efforts to ensure that the Service operates substantially in accordance with the then-current Service Level Agreement posted on its website; provided, that (i) the Service is implemented and operated in accordance with all instructions supplied by MDS; (ii) Client notifies MDS of any such defect within ten (10) calendar days after the appearance thereof; (iii) Client has properly used all updates made available with respect to the Service, and updates recommended by MDS with respect to any third party software products that materially affect the performance of the Service; (iv) Client has properly maintained all associated equipment, software and environmental conditions in accordance with applicable specifications and industry standards; (v) Client has not introduced other equipment or software creating an adverse impact on the Service; (vi) Client has paid all amounts due hereunder and is not in default of any provision of this Agreement; (vii) any legacy software with respect to which the Service is to operate contains clearly defined interfaces and correct integration code, and (viii) Client has made no changes (nor permitted any changes to be made other than by or with the express approval of MDS) to the Service source code, if any is licensed hereunder.
XI. WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION IX ("WARRANTIES") MDS HEREBY DISCLAIMS WITH RESPECT TO ALL SERVICES, SUPPORT OR OTHER DELIVERABLES PROVIDED HEREUNDER, ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. MDS DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR ERROR FREE. ANY UNAUTHORIZED CHANGES TO SOURCE CODE TO THE SERVICE WILL VOID THE WARRANTY PROVIDED UNDER THIS SECTION.
XII. LIMITATION OF LIABILITY. In no event will MDS be held liable or responsible for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise. In no event shall MDS's liability for any claim arising out of breach of this agreement exceed one month's subscription fees paid by Client.
XIII. NOT FAULT TOLERANT. THE SERVICE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN CRITICAL CARE ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF DIRECT LIFE SUPPORT MACHINES IN WHICH THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. TO THE EXTENT CUSTOMER USES THE SERVICE IN SUCH ENVIRONMENT, IT EXPRESSLY ASSUMES ALL RISK THEREFORE.
XIV. LIMITATION OF REMEDIES AND LIABILITIES. The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk:
a. Remedies. Except for rights or indemnities expressly stated under other provisions hereof, Client's sole and exclusive remedies for MDS's default hereunder shall be (i) to obtain the repair, replacement or correction of the defective Service to the extent, if any, warranted under Section IX ("Warranties") or, (ii) if MDS reasonably determines that such remedy is not economically or technically feasible, to obtain an equitable partial or full refund of amounts paid with respect to the defective Service. It is agreed that these remedies shall be exclusive even if they fail of their essential purpose.
b. Liabilities. EXCEPT FOR INDEMNITIES EXPRESSLY PROVIDED BY THIS AGREEMENT, NEITHER PARTY IS LIABLE FOR DIRECT DAMAGES EXCEEDING ONE (1) MONTH’S SUBSCRIPTION FEES PAYABLE UNDER THE ORDER FORM AT ISSUE, NOR FOR ANY CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, LOST PROFIT OR BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING TO THIS AGREEMENT. THIS LIMITATION IS INDEPENDENT OF REMEDY LIMITS.
c. Notices. Notices sent to either Party shall be effective when delivered in person or transmitted by fax machine, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the Official Contact designated on the signature page hereof. A facsimile of this Agreement and notices generated in good form by a fax machine (as well as a photocopy thereof) shall be treated as "original" documents admissible into evidence unless a document's authenticity is genuinely placed in question.
XV. TERMINATION.
a. Generally. Either Party may, in addition to other relief, suspend or terminate a Website Subscription or this Agreement if the other Party breaches any material provision hereof and fails within thirty (30) days after receipt of notice of default to correct such default or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in Bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days.
b. Survival. Termination shall have no effect on the Parties' rights or obligations under Section VIII ("Confidential & Proprietary Information"), rights or obligations under Section IX ("Warranties"), Section XIII ("Limitation of Remedies & Liabilities") or any payment obligations or any provision which by its nature should survive. Upon termination or expiration of the Term, MDS shall make a final backup of Client Data and provide the backup media to Client at actual cost of duplication.
XVI. DISPUTES, CHOICE OF LAW: All disputes arising out of or relating to this Agreement or the subject matter thereof involving less than twenty thousand dollars ($20,000) shall be submitted to a single arbitrator who shall be a former judge or attorney having experience in similar disputes. The proceedings shall be conducted pursuant to the Streamlined Arbitration Rules and Procedures and the U.S. Arbitration Act, 9 U.S.C. Sec. 1 et seq. ("Arbitration Act"). The award of the arbitrator shall include a written explanation of the decision, shall be limited to remedies otherwise available in court and shall be binding upon the Parties and enforceable in any court of competent jurisdiction. Disputes involving amounts exceeding the above dollar limit are not subject to arbitration and may be taken directly to court by either Party. This Agreement shall be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Arizona. The parties irrevocably agree that any action to enforce provisions of this Agreement or arising under or by reason of this Agreement shall be brought solely in the Superior Court of Arizona, Maricopa County venue. Any claim against MDS will be brought within one (1) year after it arose, or be barred.
XVII. ASSIGNMENT. MDS may unilaterally assign or transfer this Agreement, or any of its rights or obligations hereunder, in conjunction with a reorganization, restructuring, merger, transfer of ownership or sale of any part of MDS’s assets. Customer may transfer and assign this entire Agreement to a successor-in-interest acquiring all or substantially all its assets or operations (other than a direct competitor of MDS), upon thirty (30) days advance written notice to MDS, subject to payment of a reasonable transfer fee. Such transfer shall be conditioned upon payment of any past due amounts and the transferee's execution of a written agreement in a form acceptable to MDS. Except as expressly stated herein, neither this Agreement, nor any rights or obligations hereunder, may be transferred, assigned, delegated, sublicensed, time-shared, or rented, in whole or in part, by Customer without MDS's prior written consent and any attempt to the contrary shall be void and of no legal effect.
XVIII. FORCE MAJEURE. Should MDS be unable to perform its obligations hereunder by reason of Acts of God or any other cause beyond its reasonable control, MDS shall give prompt notice to Client and MDS’s obligations hereunder shall be suspended to the extent made necessary thereby and MDS shall not be liable for any resulting failure of delay in performance..