Mobile Application Design and Licensing Terms of Services

1. DEFINITIONS.

1. “Application” means the software VMD creates or provides to Client in connection with the Services, generally meant to be accessed and used via mobile devices, along with the Documentation, and other documents, work product and materials related thereto that VMD is required to or otherwise does create or provide to Client in connection with the Services.
2. “Confidential Information” means confidential or proprietary information of a party which is disclosed in oral, written or any other form to the other party. This includes trade secrets, business and financial data, customer information and lists, the Software and any associated documentation, Databases, and any passwords/other identification words/codes used to access/use the Software. Confidential Information may also include, but is not limited to, technical know­how, technical specifications, software code, manners of conducting business and operations, strategic business plans, systems, results of testing, consumer information, personal information, account information, product information, concepts, and compilations of data. In order for information disclosed orally to be considered Confidential Information it shall be confirmed in writing by the disclosing party within thirty (30) days after such disclosure.
3. “Client Materials” means all materials and information, including logo files, documents, Client data, and content that are provided to VMD by or a Subcontractor of VMD on behalf of Client in connection with these terms, but expressly excludes Resultant Data.
4. “Documentation” means any and all instructions, specifications, and other documents and materials that VMD provides or makes available to Client in any medium and which describe the functionality, components, features or requirements of the Application, including the installation, configuration, integration, operation, use, support or maintenance thereof.
5. “End User(s)” means the individual(s) that download, install, or use the Application as a client of Client.
6. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
7. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
8. “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including actual attorneys’ fees, fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
9. “Operating Environment” means Client’s computer systems on which the Application is intended to be installed and operate, as set forth in the Application Specification and Project Plan.
10. “Process” means to take any action or perform any operation or set of operations on any data, information or other content, including without limitation to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.
11. “Resultant Data” means information, data, and other content Processed by VMD or a Subcontractor that is derived by or through the Application and the Services. All right, title, and interest to Resultant Data shall remain with and is hereby assigned to VMD.
12. “Third-party Materials” means materials and information, in any form or medium, including any software, (including open­source software), documents, data, content, specifications, products, equipment or components of or relating to the Application that are not proprietary to Provider.

 

2. ENGAGEMENT OF VMD; GENERAL SERVICE OBLIGATIONS.

1. Engagement of VMD. Client hereby engages VMD, and VMD hereby accepts such engagement, to design the Application and provide services related thereto as further described herein and in the Documentation (collectively, “Services”) on the terms and conditions set forth in these Terms and other subscription agreements that incorporate these Terms by Reference (collectively “Client Agreements”).
2. Changes. Client’s Agreements allows for minor maintenance and updates to the Application after launch. Beyond that, the Client Agreements allows for one (1) substantial change every twelve (12) months at Client’s direction. Client will be responsible for resubmission fees charged by the App Stores after such substantial change is made, which will be invoiced to Client. Client acknowledges that continuous and/or substantial changes to the original content, including page reconstruction, new features, navigation structure changes, or consistent management of Premiere or Ultimate tier features or other significant alterations or changes will incur additional charges. Client further acknowledges that these updates may limit loading speeds and usability while such updates and maintenance is being performed.
3. Subcontractors. VMD may from time to time, and in its sole discretion, engage third parties to perform Services (“Subcontractor”).

3. MOBILE APPLICATION DESIGN.

1. Mobile Application Design and Delivery. VMD will design the mobile application in accordance with the Client Agreements and based on the information provided by Client. Client assumes sole responsibility for any inaccurate information provided to VMD. Client acknowledges and agrees that Client has no right under these Terms to receive the source code for the Application.
2. Testing. VMD will test and ensure the application functions appropriately and reliably prior to the hard launch and advertisement of the app.
3. Approval. VMD will apply for approval for the Application to be distributed through Apple Store, Google Play Store, and Android Marketplace (collectively, “App Stores”). Client acknowledges that VMD cannot control the approval decisions or the timeframe for review and approval by the App Stores.
4. Delivery of Application. Upon completion of the design of the Application and final approval by the App Stores, VMD will make sure the app is available for end users.
5. Third-party Materials. The Application may include or operate in conjunction with Third-party Materials and/or programming. All Third-party Materials are provided pursuant to the terms and conditions of the applicable third-party license agreement. Client will comply with all such third-party license agreements and any breach by Client will be deemed a breach of these Terms.
6. Rejection. Client acknowledges and agrees that Client’s sole recourse in the event of a rejection of the Application by either or all of the App Stores, VMD will adjust as required by the app store within the scope of the app agreement.

 

4. CLIENT OBLIGATIONS.

1. Project Management. Client will, throughout the Term, maintain within its organization a project manager to serve as the primary point of contact for day-to-day communications, consultation, and decision making regarding the Services. The project manager will be responsible for providing day-to-day consents and approvals on behalf of Client under these Terms. If Client’s project manager ceases to be employed or if Client otherwise wishes to replace its project manager, a new project manager must be chosen and VMD must be notified of the new project manager’s name and contact information.
2. Client Cooperation. Client will provide, in a reasonable timeframe, the Client Materials and all such other resources needed for design of the Application as reasonably requested by VMD and provide all cooperation and assistance VMD reasonably requests to enable VMD to exercise its rights or perform its obligations under these Terms. VMD is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under these Terms. In the event of any such delay or failure, VMD may, by notice to Client, extend all or any subsequent due dates as VMD deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies VMD may have for any such failure or delay by Client.
3. Marketing and Distribution of Application. Client will make commercially reasonable efforts to distribute the Application to Client’s end users.

 

5. TRIAL PERIOD; TESTING AND ACCEPTANCE.

1. Trial Period; Testing and Acceptance. All acceptance testing of Deliverables will be conducted as follows:
   1. Following delivery of the Application to Client, Client will have a seven (7) day trial period (“Trial Period”) in which to test the Application and to evaluate whether the Application materially conforms to Client’s needs. In the event that Client rejects the Application and the Services during the Trial Period, VMD will make appropriate adjusts based on scope of app project. Setup Costs are non­refundable.
   2. Promptly upon the first day following the Trial Period, Client will be deemed as having accepted the Application and Client will begin paying the Subscription Fees, as further described in the Client Agreements.
2. Obligations. This section sets forth VMD’s sole obligations and Client’s exclusive remedies for any failure of any Deliverable to conform to the Client’s specifications or perform in accordance with the Documentation.

 

6. TRAINING; MAINTENANCE AND SUPPORT.

1. Training and Support. VMD will provide Client with necessary training related to the Application. VMD will provide Client with commercially reasonable maintenance and support services with regard to the use and distribution of the Application during the Term of the Customer Agreements.
2. Updates. VMD, at its sole option, may from time to time provide updates to the Application (“Updates”). Client is required to accept Updates, and Client acknowledges that, by downloading or installing the Updates, that those Updates will be considered part of the Application and subject to the terms and conditions of these Terms.
3. Contact Method. VMD will contact Client via email regarding when Updates are available.
4. Monthly Maintenance. VMD will perform monthly maintenance according to the tier of Application purchased by Client. VMD will also provide all updates required to comply with regulations of the App Stores. Client acknowledges that this monthly maintenance does not include redesign or additional features.

 

7. FEES; PAYMENT TERMS.

1. Fees. Client will pay VMD such amounts necessary depending upon which subscription plan Client chooses, or such other rate as quoted to you by an authorized agent of VMD. Such fees include the a charge for initial design (“Setup Cost”) and either a monthly or an annual subscription fee (“Subscription Fees”), depending upon the Client’s set­up and term selections.
2. Payment. Subscription Fees will be automatically deducted from the account provided by Client to VMD on or prior to the first date of the next Monthly Term or Annual Term, as the case may be. Client will make all payments hereunder in US Dollars. Payments are due and payable on the first day of each new Monthly Term or Annual Term, as the case may be (collectively, “Subscription Term”) without the issuance of an invoice. Client is responsible for all charges from its card issuer or bank associated with VMD’s processing of Client’s payment. A Subscription Term purchased is made available upon receipt of payment in full. The terms and conditions in this Section, and other supplementary terms disclosed to and accepted by Client during the payment process will apply to Credit Card Payments and ACH Payments (including terms imposed by the applicable Credit Card Payment processor or ACH processor acting on VMD’s or Client’s behalf).
3. Payment Terms. Client may select one of two following payment term options:
   1. Client will pay One Hundred Percent (100%) of the Setup Cost upon execution of the Client Agreements. Such payment will be subject to a Five Percent (5%) discount of the Setup Cost. At the end of the Trial Period, Client will begin Subscription Fees.
4. Payment By Automated Clearing House. VMD accepts Automated Clearing House (“ACH”) payments. Such payments are not charged any processing fees by VMD. If making payments by ACH, Client agrees to VMD’s, or its ACH payment processor’s, collection of certain information associated with ACH payments including but not limited to (i) account and routing number of Client’s checking account; (ii) Client’s Bank account address of record; (iii) a valid email address and phone number of purchaser; or (iv) a valid sales tax exemption number when applicable. Client represents and warrants that any bank account used to pay Subscription Fees is issued to Client, and Client has all necessary rights and authority to use the bank account. ACH payments are subject to validation checks and authorization by processor. VMD is not obligated to inform Client of the reason for the refusal of any ACH payment.
5. Payment By Credit Card. accepts credit/debit card payments as set forth on VMD’s website (“Credit Card Payments”). Credit Card Payments are subject to a Three Percent (3%) processing fee. Client agrees to VMD’s, or its Credit Card Payment processor’s collection and use of certain information associated with Credit Card Payments, including but not limited to: (i) credit card number, expiration date, name and CVV2 code as it appears on the credit card; (ii) credit card billing address; (iii) a valid email address and phone number of the purchaser; or (iv) a valid sales tax exemption number when applicable. Client represents and warrants that any credit/debit card used to pay Subscription Fees is issued to Client, and Client has all necessary rights and authority to use the credit/debit card. Credit Card Payments are subject to validation checks and authorization by the card issuer. VMD is not obligated to inform Client of the reason for the refusal of any Credit Card Payment.
6. Rejection of Automatic Credit Card or Other Account Debit. In the event that a charge made under these Terms is rejected by Client’s Credit Card or other Account, VMD will have the right, in VMD’s sole discretion, to suspend Client’s license under these Terms and access to the Application, until Client provides updated Credit Card or other Account information and such required charges are paid in full. In the event that Client has not cured the non­payment within fifteen (15) days of notice from VMD of the rejected charge, VMD has the right in VMD’s sole discretion to terminate the Client Agreements.
7. Taxes. Client is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) related to the Subscription, except any taxes assessed upon VMD’s net income or employees. If VMD is required to directly pay Taxes related to Client’s use of the VMD Applications, Client agrees to promptly reimburse VMD for any Taxes so paid by VMD.
8. No Deduction or Setoff. Client will pay all amounts due under the Client Agreements without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by VMD whether under these Terms, applicable Law or otherwise and whether relating to VMD’s breach, bankruptcy or otherwise.

 

8. INTELLECTUAL PROPERTY RIGHTS.

1. Application. Except as set forth in this section, all right, title and interest in and to: (a) the Application; (b) Resultant Data; and (c) all works, inventions and other subject matter incorporating, based on, or derived from any Application, including all customizations, enhancements, improvements and other modifications thereof (collectively, “Derivatives”), by whomsoever made and including all Intellectual Property Rights therein, are and will remain with VMD. Client has no right or license with respect to any Application or Derivatives except as expressly licensed herein. All other rights in and to the Application and Derivatives are expressly reserved by VMD.
2. Client Materials. Client warrants that Client has rights in and to the Client Materials, including all rights needed to effectuate these Terms. As between the parties, Client is the owner of all right, title, and interest in and to the Client Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. All other rights in and to the Client Materials are expressly reserved by Client. Notwithstanding the foregoing, Client acknowledges that Resultant Data is expressly excluded from Client Materials, but to the extent necessary under the Law, Client hereby unconditionally and irrevocably grants to VMD an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

 

9. LICENSES; END USERS.

1. VMD License. Subject to and conditioned upon Client’s payment of the Subscription Fees and compliance with and performance in accordance with all other terms and conditions of these Terms, VMD hereby grants to Client a non­transferable, license: (a) to install, operate, and use the Application for the Term of the Client Agreements, solely for Client’s business operations and in accordance with the Documentation; (b) to use the Documentation and other Application solely in connection therewith; and (c) to market and distribute the Application to Client’s end users subject to the terms of the End User License Agreement. This license is also subject to the terms of any mobile application retailer where the Application was purchased or otherwise acquired, such as the Usage Rules of the App Stores.
2. License Restrictions. With the exception of End Users to whom Client distributes the Application and who have entered into the VMD End User License Agreement, Client will not, and will not permit any other person to, access or use the Application except as expressly permitted by these Terms and the VMD End User License Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client will not, except as these Terms expressly permits:
   1. copy, modify, or create derivative works or improvements of the Application;
   2. rent, lease, lend, sell, sublicense, assign, publish, transfer, or otherwise make available the Application to any other person, including through or in connection with any time­sharing, service bureau, software as a service, cloud, or other technology or service;
   3. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
   4. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Application, including any copy thereof;
   5. use any Application in a manner or for any purpose that infringes, misappropriates or otherwise violates any Law or Intellectual Property Right;
   6. use the Application for purposes of competitive analysis of the Application, the design of a competing software product or service, or any other purpose that is to VMD’s commercial disadvantage; or
   7. otherwise use the Application beyond the scope of the license granted herein.
3. Client Materials License.
   1. Client hereby grants to VMD a fully paid-up and royalty free, non­exclusive right and license to use and display the Client logo in association with the Application and as otherwise described herein during the Term of these Terms.
   2. Client hereby grants to VMD a fully paid-up and royalty free, non­exclusive right and license to use, reproduce, perform, display, distribute, modify and create derivative works and improvements of the Client Materials to design the Application, create the Resultant Data, and otherwise as necessary perform the Services for the benefit of Client, and for VMD’s general design and commercialization of software application products. The term of such license will commence upon Client’s first delivery of Client Materials to VMD and be perpetual.

 

10. CONFIDENTIALITY.

1. Nondisclosure. Each party will use the other’s Confidential Information only to perform its obligations/rights hereunder, and for the purposes of, these Terms, each party will maintain the confidentiality of the other’s Confidential Information in the same manner in which it protects its own information of like kind, but in no event will either party take less than reasonable precautions to prevent the unauthorized use or disclosure of the Confidential Information. Each party is permitted to disclose Confidential Information to its employees and authorized subcontractors on a need to know basis only, provided that all such subcontractors have written confidentiality obligations to that party.
2. Unauthorized Disclosure by Licensee. Client will be responsible for, and will indemnify and hold VMD harmless against, any damages arising from any unauthorized disclosure of VMD’s Confidential Information caused by Client.
3. Exceptions.
   1. The confidentiality provisions of these Terms do not apply to information that is entirely in the public domain; was known to the party prior to access to the information; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the other party; or is created by that party’s employees independently of the other party’s Confidential Information.
   2. Nothing in these Terms will be deemed to prevent either party from disclosing any Confidential Information received hereunder pursuant to any regulatory, self regulatory or supervisory authority having appropriate jurisdiction, or any applicable Law, provided that: (i) such disclosure will be limited to the minimum acceptable level of disclosure; (ii) that such party, unless prohibited by such regulatory, self regulatory or supervisory authority, or such Law, will notify the other party of the imminent disclosure as soon as is practicable and in all events with sufficient prior notice to allow that party to seek a protective order or otherwise to object; and (iii) that the disclosing party will minimize or prevent such disclosure to the maximum extent allowed under applicable Law.
   3. Each party will promptly inform the other party of any actual or suspected breach of this section by it (including its contractors and agents) upon becoming aware of such actual or suspected breach and agrees to reasonably cooperate with the other party in the incident response process.
4. Survival. The provisions of this section will survive termination of these Terms for a period of five (5) years and will inure to the benefit of the parties and their successors and assigns, except that VMD’s rights relating to Resultant Data will survive in perpetuity.

 

11. TERM AND TERMINATION.

1. Selection of Subscription Term. Client may elect from the following Subscription Terms: (a) a term of one month, which will commence on the first day following the Trial Period and remain effective until the same day of the following month (a “Monthly Term”); or (b) an annual term which will commence on the first day following the Trial Period and remain effective until the same day of the following year (an “Annual Term”).
2. Automatic Renewal. The Subscription Term, whether a Monthly Term or an Annual Term, will automatically renew unless Client provides notice in writing to VMD of Client’s desire to terminate the Client Agreements sixty (60) days prior to the last day of a Monthly Term or an Annual Term, whichever applies to Client. The Client may also elect to switch from a Monthly Term to an Annual Term, or an Annual Term to a Monthly Term, by providing such election in writing to VMD no later than fifteen (15) days prior to the last day of the current term.
3. Termination. Client may terminate the Client Agreements with sixty (60) days’ written notice to VMD prior to the termination date of the agreement. Either party may terminate these Terms immediately based on a breach of these Terms if the breach is incapable of cure; or if being capable of cure, the breach remains uncured for ten (10) days after the non­breaching party provides the breaching party with written notice of such breach. Either party may terminate the Client Agreements, effective immediately, if the other party becomes insolvent, files or has filed against it voluntary or involuntary bankruptcy, or is generally unable to pay, or fails to pay, its debts as they become due.
4. Effect of Expiration or Termination. Upon any expiration or termination of the Client Agreements, all licenses granted by either party to the other will also expire or terminate, except to the extent that any license has an express term that continues for a longer period or is perpetual. Without limiting the foregoing, all licenses granted to Client in the Application will also terminate and Client will immediately cease all use and distribution of the Application. VMD will disable the availability of the Application for download or use by End Users, including removal of the Application from the App Stores.

 

12. NON-SOLICITATION.

During the Term of the Client Agreements and for three (3) years after, Client will not, and will not assist any other Person to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by VMD or any Subcontractor. In the event of a violation of this section, VMD will be entitled to liquidated damages equal to the compensation paid by VMD to the applicable employee or contractor during the prior twenty four (24) months.

 

13. REPRESENTATIONS AND WARRANTIES.

1. Client. Client represents and warrants that it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; has the full right, power and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, these Terms; and the execution of the Client Agreements by Client’s representative has been duly authorized by all necessary corporate or organizational action of such party.
2. DISCLAIMER OF WARRANTIES. THE APPLICATION AND THE SERVICES ARE PROVIDED “AS IS” AND VMD HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND VMD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON­INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, VMD MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR APPLICATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S, END USERS, 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. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD­PARTY OWNER OR DISTRIBUTOR OF THE THIRD­PARTY MATERIALS.

 

14. PRIVACY.

• HIPAA.  As part of the Service, VMD may perform or assist in performing a function or activity on Client’s behalf that involves the use and disclosure of Protected Health Information (as defined in 45 C.F.R. 164.501; hereinafter, “PHI”).  The parties hereto must use or disclose such PHI as required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (“Security Rule”) promulgated thereunder, and the Health Information Technology for Economic and Clinical Health Act (Division A, Title XIII and Division B, Title IV, of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) (“HITECH Act”). Capitalized terms used but not otherwise defined in this Section 14 will have the same meaning given to such terms in HIPAA, the HITECH Act, or any implementing regulations promulgated thereunder, including but not limited to the Privacy Rule and the Security Rule.
• Business Associate Agreement.  In connection with and by agreeing to these Terms, you and VMD agree to be bound by the following:
  • Client is a “Covered Entity” within the meaning of HIPAA.
  • VMD provides technology integration and support to Client, which services may involve the access to, generation of, use of, or disclosure of health information that identifies individual patients, PHI, some of which may be in electronic form, electronic protected health information (“EPHI”).  Accordingly, VMD is a “Business Associate” of Client under HIPAA.
  • Client is obligated by HIPAA to obtain “satisfactory assurances” from its business associates as a precondition to permitting a business associate to access, generate, use, or disclose PHI and EPHI on its behalf or in the course of performing services for it.
  • Client is obligated by HIPAA to obtain “satisfactory assurances” from its business associates as a precondition to permitting a business associate to access, generate, use, or disclose PHI and EPHI on its behalf or in the course of performing services for it.
  • Except as otherwise limited in these Terms, VMD may also use PHI and EPHI for the proper management and administration of VMD or to carry out the legal responsibilities of VMD; provided that the disclosure is required by law or VMD obtains reasonable assurance from any person to whom the disclosure is made that the PHI and EPHI will be confidential and will be used or disclosed only as required by law or for the purposes for which it was disclosed and the person to whom the information was disclosed notifies VMD of any breach of confidentiality involving the PHI or EPHI.
  • VMD agrees to not use or further disclose PHI and EPHI other than as permitted or required by these Terms or as required by law.  VMD acknowledges that it is obligated to independently comply with the administrative, physical, and technical safeguards of the Security Rule and the privacy and security breach notification provisions of the HITECH Act and that it may be liable to the government for fines and other sanctions imposed by the U.S. Department of Health and Human Services (“DHHS”) and the state attorney general for noncompliance.
  • VMD agrees to use appropriate safeguards to prevent use or disclosure of PHI and EPHI other than as provided for by these Terms.  VMD further agrees to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the PHI and EPHI that it creates, receives, maintains, or transmits on behalf of Client.  “Appropriate safeguards” include, but are not limited to, physical, administrative, and technical safeguards such as locking cabinets or rooms where PHI or EPHI is housed, using computer passwords or other security measures to prevent unauthorized access to PHI or EPHI, providing encryption for EPHI at rest and in motion, implementing policies and procedures describing authorized access and use for VMD’s workforce, and human resources policies and procedures to enforce these rules.
  • VMD agrees to cooperate with Client and to perform such activities as Client may from time to time direct, to mitigate, to the extent practicable, any harmful effect that is either independently known to VMD or brought to VMD’s attention by Client because of a wrongful use or disclosure of PHI or EPHI by VMD.
  • VMD agrees to report to Client any use or disclosure of PHI in violation of these Terms.  VMD further agrees to report to Client any security incident regarding EPHI of which it becomes aware.  Without limiting the generality of the foregoing, VMD agrees to notify Client of any Breach (as that term is defined in the HITECH Act) that VMD discovers or should have discovered.  VMD will provide this notification within one (1) business day of the date on which it discovered the breach.  VMD will provide to Client the names, addresses, telephone numbers, and e-mail addresses of each individual affected by a breach, along with a description of the data involved in the breach, a description of how the breach occurred, and a description of all internal steps that VMD has taken to prevent a future similar breach.  VMD will cooperate with Client in the preparation and distribution of notices of the breach to the affected individuals and by providing notice to the DHHS and media outlets as required by the HITECH Act, if so, requested by Client.
  • VMD agrees to ensure that any agent, including a subcontractor, to whom it provides PHI and EPHI received from, or created or received by VMD on behalf of Client, agrees to the same restrictions and conditions that apply through these Terms to VMD, including that each agent or subcontractor agrees to implement reasonable and appropriate safeguards to protect EPHI.
  • At the request of Client, and in the time and manner designated by Client, VMD agrees to provide access to PHI and EPHI in a designated record set to Client or to an individual to meet the inspection and copying requirements of the Privacy Rule.
  • VMD agrees to document all disclosures of PHI and EPHI and information related to such disclosures as would be required for Client to respond to a request by an individual for an accounting of disclosures of PHI and EPHI in accordance with the Privacy Rule and the HITECH Act.  At Client’s request, and in the time and manner designated by Client, VMD agrees to provide to Client the information collected to permit Client to respond to a request by an individual for an accounting of disclosures of PHI and EPHI.  To the extent that VMD holds PHI or EPHI from an electronic health record used by Client, VMD further agrees to provide to a requesting individual an accounting of disclosures of PHI and EPHI it has made, including an accounting of disclosures for treatment, payment, and health care operations during the three years before the individual’s request if Client so directs.
  • VMD agrees to honor any restriction on the use or disclosure of PHI or EPHI that Client agrees to, so long as Client notifies VMD of that restriction in writing.
  • During the Term of the Client Agreements, Client agrees to the following:
    • Client will provide VMD with the notice of privacy practices that Client produces in accordance with the Privacy Rule, as well as any changes to that notice;
    • Client will notify VMD of any restriction to the use or disclosure of PHI and EPHI that Client has agreed to (and any revocation of such restriction) in accordance with the Privacy Rule; and
    • Client will not request VMD to use or disclose PHI or EPHI in any manner that would not be permissible under the Privacy Rule or the Security Rule if done by Client, except for uses of PHI for the proper administration and management of VMD or as required by law.
  • Upon either party’s knowledge of a material breach by the other party, the nonbreaching party will, at its sole option, do either of the following:
    • Provide the breaching party with a fifteen (15) day opportunity to cure its material breach, to be determined in the sole discretion of the non-breaching party.  If the non-breaching party is not satisfied with the breaching party’s ability to cure, the non-breaching party may terminate the Agreements with the breaching party, or
    • Immediately terminate the Client Agreements with the breaching party without an opportunity to cure if nonbreaching party determines, in its sole discretion, that cure is not possible.
  • If the provisions of HIPAA, the HITECH Act, the Privacy Rule, or the Security Rule are amended, modified, or changed in this Section 14 as such as this is no longer mandated then this section will be nullified, but the remaining terms and conditions of these Terms will remain effective.
  • Upon termination of these Terms, the Parties will perform as follows:
    • Except as provided in this Section, on termination of these Terms for any reason, VMD will return or destroy all PHI and EPHI received from Client or created or received by VMD on behalf of Client as directed by Client.  Client has the sole authority to determine whether PHI or EPHI must be returned or destroyed and will have the sole authority to establish the terms and conditions of that return or destruction.  This provision will apply to PHI and EPHI that is in the possession of subcontractors or agents of VMD.  VMD will retain no copies of PHI or EPHI.
    • If VMD believes within its sole discretion that returning or destroying PHI or EPHI is infeasible, VMD must provide Client with a written explanation of the conditions that make return or destruction infeasible.  On Client’s concurrence that return or destruction of PHI or EPHI is infeasible, VMD will extend the protections of these Terms to the PHI and EPHI and limit further uses and disclosures of the PHI and EPHI to those purposes that make the return or destruction infeasible for as long as VMD maintains such PHI or EPHI.
    • If the Client Agreements are terminated and are not immediately replaced with a substitute agreement, and if the provisions of HIPAA in effect at that time continue to mandate the execution of a confidentiality agreement between covered entities and their business associates, the services relationship between VMD and Client will immediately terminate simultaneously with termination of these Terms.
  • VMD agrees that the terms and conditions of this Section 14 will be construed as a general confidentiality agreement that is binding on VMD even if it is determined that VMD is not a business associate as that term is used in HIPAA.
• CCPA.  This Section 14(C) applies solely to the extent that: (1) VMD’s provision of the Service is not exempt from the California Consumer Privacy Act of 2018 (“CCPA”) under California Civil Code sections 1798.145(c)(1)(A) and (c)(1)(B) pertaining to medical information, PHI, providers of health care, and covered entities; (2) you are a “business” within the meaning of the CCPA; and (3) VMD is processing the personal information of California residents.
  • VMD is a “service provider” (as such term is defined under the CCPA) under these Terms.  VMD will not retain, use, disclose or otherwise process Customer Personal Information for any purpose other than for performing the Service, or as otherwise permitted by the CCPA.  For purposes of this Section 14(C), “Customer Personal Information” means any “personal information” (as defined in the CCPA) contained within the data that VMD “processes” (as defined in the CCPA) in connection with performing the Service under these Terms.  VMD will not “sell” (as defined in the CCPA) any Customer Personal Information.  VMD may create and derive from its provision of the Service anonymized and/or aggregated data that does not identify you or any consumer, and use, publicize or share with third parties such data to improve VMD’s products and services and for VMD’s other lawful business purposes.  Notwithstanding anything in these Terms or any Client Agreements entered in connection therewith, you and VMD acknowledge and agree that VMD’s access to Customer Personal Information is not part of the consideration exchanged by the parties in respect of these Terms.  VMD certifies that it understands its obligations under this paragraph and will comply with them.
  • You are solely responsible for (1) identifying whether the CCPA applies to you; (2) providing any notices of your privacy practices that may be required by CCPA; and (3) identifying and responding to consumer requests to exercise CCPA rights to access, delete, or opt out of the sale of personal information (collectively, “CCPA Requests”), including for verifying the identity of consumers submitting CCPA Requests and for evaluating the scope and legality of CCPA Requests. VMD will provide reasonable assistance to you in responding to such CCPA Requests, which may include assistance by way of providing self-service functionality.  VMD will treat any CCPA Requests that you submit to VMD as presumptively valid under the CCPA.
  • With respect to CCPA Requests for which you require VMD to provide assistance, you must: (a) notify VMD within 10 days of your receipt of the CCPA Request by emailing EMAIL ADDRESS; and (b) provide VMD with the consumer’s email address or such other information that would permit VMD to honor the request.  You will be solely responsible and liable for responding to the individual’s CCPA Request, including without limitation the content and timing of the response, in compliance with the CCPA.  In addition:
    • In response to a CCPA Request for access to Customer Personal Information that you submit to VMD, within ten (10) business days of VMD’s receipt of such request from you, VMD will provide you with a file that contains the Customer Personal Information that VMD maintains about the individual via a secure method of transfer.  VMD reserves the right to withhold from such file any Customer Personal Information that the CCPA does not require to be provided in response to a CCPA Request.
    • In response to a CCPA Request for the deletion of Customer Personal Information that you submit to VMD, except as otherwise required by applicable law or permitted by the CCPA, within ten (10) business days of VMD’s receipt of such request from you, VMD will delete the Customer Personal Information, to the extent VMD maintains such Customer Personal Information about the individual.  You agree that VMD may delete such Customer Personal Information by anonymizing and/or aggregating the information such that the information does not identify, and is not reasonably capable of identifying, the individual.
  • You agree that you will not direct or otherwise cause VMD to share any Customer Personal Information with any third party in a manner that may constitute a “sale” as such term is defined in the CCPA.
• TCPA. This Section 14(D) concerns compliance with the Telephone Consumer Protection Act of 1991, located at 47 U.S.C. §§ 227 et seq., including the implementing regulations therefor located at 47 C.F.R. 64.1200 et seq. (“TCPA”) and the Telemarketing Sales Rule authorized by the Telemarketing and Consumer Fraud and Abuse Prevention Act, located at 15 U.S.C. §§ 6101-6108 (“TSR”) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, located at 15 U.S.C §§ 7701-7713 (“CAN SPAM Act”). As between you and VMD, you agree that you will comply and be solely responsible for complying with all laws governing any messages sent or received in connection with your access and use the Service, including the TCPA, TSR, and CAN SPAM Act.  Specifically, you agree to be responsible for, without limitation, obtaining any legally required consent(s) from any and all third parties (including your patients or customers) to send and receive any text message and/or emails using the Service and honoring any requests revoking such consent or otherwise “opting-out” of receiving any such messages and/or emails.  You agree to be liable for, and to indemnify, defend and hold harmless VMD from and against any and all damages, liabilities, judgments, fees, fines, costs, and expenses (including actual attorneys’ fees) incurred by VMD arising from any claims, demands or legal actions made against VMD resulting from your failure to comply with this Section 14(D).
• Anti-Discrimination Policy.  At VMD we strive to create an environment where people are equally valued and where we and our Clients work together to do our part to help end discrimination.  As a result, VMD has adopted an anti-discrimination policy that includes our Clients.  VMD will not tolerate Clients who engage in extreme examples of blatant discrimination or verbal aggression in their interactions with VMD employees and/or publicly on social channels.  This includes discrimination against or verbal aggression towards any race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person.  Violation of this policy by you can qualify as a breach of these Terms.

 

15. INDEMNIFICATION.

1. VMD Indemnification. VMD will indemnify, defend, and hold harmless Client from and against a Loss arising out of or relating to any claim, suit, action or proceeding (an “Action”) by a third party alleging that Client’s use of the Application (excluding Client Materials and Third-party materials) in compliance with these Terms infringes a U.S. Intellectual Property Right. The foregoing obligation expressly excludes any Action or Losses arising out of or relating to any: (a) combination of the Application with any hardware, system or other software or materials not provided or authorized in writing by VMD; (b) modification of the Application other than by VMD, or with VMD’s written approval; (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client; or (d) any act, omission or other matter described in the remainder of this Indemnification section, whether or not the same results in any Action against or Loss by any VMD Indemnitee.
2. Client Indemnification. Client will indemnify, defend, and hold harmless VMD and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “VMD Indemnitee”) from and against any and all Losses incurred by any VMD Indemnitee in connection with any Action by a third party arising out of or relating to: (a) Client’s or End User’s installation or use of the Application in violation of these Terms; (b) Client Materials, or VMD’s use thereof, in accordance with these Terms; (c) VMD’s compliance with any specifications or directions provided by or on behalf of Client to the extent prepared without any contribution by VMD; or (d) any allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants or obligations under these Terms.
3. Indemnification Procedure. Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified. The party seeking indemnification (“Indemnitee”) will cooperate with the other party (“Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will immediately take control of the defense and investigation of such Action and will employ counsel [of its choice/reasonably acceptable to the Indemnitee] to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this section will not relieve the Indemnitor of its obligations herein except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
4. Mitigation. If the Application, other than Client Materials, is or in VMD’s opinion is likely to be claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Client’s use of the Application, other than Client Materials, is enjoined or threatened to be enjoined, VMD may, at its option: (a) obtain the right for Client to continue to use the Application materially as contemplated by these Terms; (b) modify or replace the Application, in whole or in part; or (c) by written notice to Client, terminate the license granted to Client under these Terms and require Client to immediately cease any use of the Application. In the event of termination, Client will be entitled to a refund of the prorate amount remaining in the Client’s then current Monthly or Annual term, and such refund shall be Client’s sole remedy.

THIS SECTION SETS FORTH CLIENT’S SOLE REMEDIES AND VMD’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THESE TERMS OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

 

16. LIMITATIONS OF LIABILITY.

1. EXCLUSION OF DAMAGES. IN NO EVENT WILL VMD OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE; OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF VMD AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID TO VMD BY CLIENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

17. FORCE MAJEURE.

In no event will VMD be liable or responsible to Client, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, when and to the extent such failure or delay is caused by any circumstances beyond VMD’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of these Terms, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.

 

18. MISCELLANEOUS.

1. Further Assurances. Upon a party’s reasonable request, the other party will, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to the Client Agreements.
2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Client Agreements will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
3. Public Announcements. Neither party will issue or release any announcement, statement, press release or other publicity or marketing materials relating to the Client Agreements or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed, provided, however, that VMD may, without requiring Client’s consent, include Client’s name, and/or other indicia in its lists of VMD’s current or former clients of VMD in promotional and marketing materials, including without limitation on VMD’s website.
4. Notices. All notices, requests, consents, claims, demands, waivers and other communications under these Terms have binding legal effect only if in writing and addressed to VMD at such address as VMD may designate from time to time in accordance with this section. Notices sent in accordance with this section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e­mail, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
5. Headings. The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
6. Entire Agreement; Survival. The Client Agreements, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In addition to survival of terms as expressly described herein, all terms that by their nature should survive the termination or expiration of the agreement will survive.
7. Assignment. Client will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Client Agreements, without VMD’s prior written consent, provided, however, that Client may assign the Client Agreements without written consent in connection with the transfer or sale of all or substantially all of its business related to the Client Agreements, or in the event of its merger, consolidation, change in control or similar transaction. These Terms are binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
8. No Third-party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of these Terms.
9. Amendment and Modification; Waiver. No amendment to or modification of the Client Agreements is effective unless it is in writing and signed by an authorized representative of each party. 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 these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
10. Severability. If any provision of the Client Agreements is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of the Client Agreements 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 hereto will negotiate in good faith to modify the Client Agreements so as to effect the original intent of the parties 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.
11. Governing Law; Submission to Jurisdiction. The Client Agreements are governed by and construed in accordance with the internal laws of the State of Michigan 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 State of Michigan. Any legal suit, action or proceeding arising out of or related to the Client Agreements or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Michigan in each case located in the County of Kent County, Michigan, or other such county that VMD shall designate. Client irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.
12. Cost of Enforcement. If either party breaches the Client Agreements and if counsel is employed to enforce the Client Agreements, the successful party will be entitled to actual attorney fees and costs associated with enforcement.
13. Equitable Relief. Client acknowledges and agrees that a breach or threatened breach of any of its obligations under Sections 8, 9 or 10 would cause the VMD irreparable harm for which monetary damages would not be an adequate and agrees that VMD 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 Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14. Counterparts. The Client Agreements may be executed in any number of counterparts, each of which will be deemed to be an original, and all counterparts, when taken together, will constitute the same Client Agreements.  The Parties agree that signatures on the Client Agreements may be delivered by facsimile or electronically in lieu of an original signature and agree to treat facsimile or electronic signatures as original signatures that bind them to the Client Agreements.