Terms of Service
Posted/Revised: 2023-07-11
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between MedWise Marketing LLC (“MedWise”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and MedWise’s provision of MedWise’s Software (as defined below in Section 1.4) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS.
The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “Customer Data” means all information processed or stored through the Software by Customer or on Customer's behalf.
1.2. “Documentation” means MedWise's standard information related to use of the Software, as well as any documentation provided to Customer.
1.3. “Order” means an order for access to the Software, executed by signing up through MedWise’s web portal.
1.4. “Privacy/Security Law” means laws (a) related to personal data that (b) govern MedWise’s handling of Customer Data (if any).
1.5. “Software” means the MedWise Marketing Software.
1.6. “Term” is defined in Section 11.1 below.
1.7. “User” means any individual who uses the Software on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
2. THE SOFTWARE.
2.1. Use of the Software. During the Term, Customer may access and use the Software for its internal business purposes pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.
2.2. Service Levels. Customer’s sole remedy for any failure of the Software is a partial credit of any fees, to be decided in the discretion of MedWise. Such remedy is Customer’s sole remedy for any failure of the Software, and Customer recognizes and agrees that if this Agreement does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to this Agreement apply to outstanding or future invoices only and are forfeited upon termination of this Agreement. MedWise is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
2.3. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Software.
2.4. Software Revisions. MedWise may revise Software features and functions at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the Software materially reduces features or functionality provided pursuant to an outstanding Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding.
2.5. Onboarding.
(a) Process. Customer will work with MedWise during an onboarding phase. Through the Software, the Customer will select therapies and topics that will and will not be used. The Customer will also submit to MedWise a list of contact email addresses for which it has obtained consent to email through the Software.
(b) Customer Obligations. Customer will:
(i) Designate one of its employees or agents to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Client Representative”), with such designation to remain in force unless and until a successor Client Representative is appointed.
(ii) Require that the Client Representative respond promptly to any reasonable requests from MedWise for instructions, information, or approvals required by MedWise to provide the Software.
(iii) Cooperate with MedWise and timely provide, in a format specified by MedWise, all information reasonably necessary for MedWise to perform under this Agreement.
(iv) Take all steps necessary, including obtaining any required licenses or consents and providing all required notices, to (i) perform Customer’s obligations under this Agreement, (ii) permit MedWise to use “personal information” (as defined by the California Consumer Privacy Act or other Privacy/Security Law) for its own lawful use and in connection with providing the Software, and (iii) prevent Customer-caused delays in MedWise’s provision of the Software.
3. PAYMENT.
3.1. Subscription Fees. Customer will pay MedWise the fee set forth in each Order (the “Subscription Fee”) for each Term. MedWise’s invoices are due upon issuance. For late payment, Customer will pay interest charges from the time the payment was due at the rate that is the lower of 1.5% per month or the highest rate permissible under applicable law. MedWise will not be required to refund the Subscription Fee under any circumstances.
3.2. Taxes. Amounts due under this Agreement are payable to MedWise without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, MedWise may require that Customer submit applicable Sales Taxes to MedWise. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives MedWise a valid tax exemption certificate within 30 days of the Effective Date. MedWise’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 3.2. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer will separately pay MedWise the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 3.2 does not govern taxes based on MedWise’s net income.
4. CUSTOMER DATA & PRIVACY.
4.1. Management of Customer Data in General. The provisions below of this Section 4.1 are subject to applicable law, including Privacy/Security Laws.
(a) Limited Use. MedWise will not: (i) access, process, or otherwise use Customer Data other than as necessary to facilitate the Software or as otherwise agreed under this Agreement; or (ii) give Customer Data access to any third party, except MedWise’s affiliates or subcontractors that have a need for such access to facilitate the Software and are subject to a reasonable written agreement governing the use and security of Customer Data, or as otherwise agreed upon by this Agreement. Notwithstanding the above, MedWise and affiliates of MedWise may contact and use Customer Data. Further, MedWise will exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data.
(b) De-Identified Data. Notwithstanding the provisions of this Article 4, MedWise may use, reproduce, sell, publicize, or otherwise exploit De-Identified Data (as defined below) in any way, in its sole discretion, including without limitation aggregated with data from other customers. (“De-Identified Data” refers to Customer Data with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, or Customer.)
(c) Privacy Policy. Customer acknowledges MedWise’s privacy policy at https://medwisemarketing.com/legal-mumbo-jumbo/, and Customer recognizes and agrees that nothing in this Agreement restricts MedWise’s right to alter such privacy policy.
(d) Required Disclosure. Notwithstanding the provisions of this Article 4, MedWise may disclose Customer Data as required by applicable law or by proper legal or governmental authority. MedWise will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
(e) Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Software, Customer assumes such risks. MedWise offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
(f) Additional Fees. Customer recognizes and agrees that MedWise may charge additional fees (without limitation) (a) for activities (if any) required by Privacy/Security Laws and (b) for activities Customer requests to help it comply with Privacy/Security Laws.
4.2. Data Accuracy. MedWise will have no responsibility or liability for the accuracy of data uploaded to the Software by Customer, including without limitation Customer Data and any other data uploaded by Users.
4.3. Erasure. MedWise may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, without limiting MedWise’s other rights or remedies.
4.4. Excluded Data. Customer warrants that (a) it has not and will not transmit Excluded Data (as defined below), or permit transmission of Excluded Data, to MedWise or its computers or other media and, (b) to the best of its knowledge, Customer Data does not and will not include Excluded Data. Customer will inform MedWise of any Excluded Data within Customer Data promptly after discovery (without limiting MedWise’s rights or remedies). Customer recognizes and agrees that: (i) the provisions of this Agreement related to Customer Data do not apply to Excluded Data; (ii) MedWise has no liability for any failure to provide protections in the Excluded Data Laws (as defined below) or otherwise to protect Excluded Data; and (iii) MedWise’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. MedWise is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data. (“Excluded Data” means protected health information under HIPAA, social security numbers, or financial information unrelated to the payment of Fees. “Excluded Data Laws” means any law or regulation governing Excluded Data, including without limitation any law or regulation protecting privacy or security rights of Excluded Data subjects, as well as the following statutes and regulations: HIPAA, Gramm-Leach-Bliley Act.)
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer will not: (a) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; (b) provide Software passwords or other log-in information to any third party; (c) share non-public Software features or content with any third party; (d) access the Software in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Software, or to copy any ideas, features, functions or graphics of the Software; or (e) engage in web scraping or data scraping on or related to the Software, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, MedWise may suspend Customer’s access to the Software without advanced notice, in addition to such other remedies as MedWise may have. This Agreement does not require that MedWise take any action against Customer or any User or other third party for violating this Section 5.1 or this Agreement, but MedWise is free to take any such action it sees fit.
5.2. Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the Software, including without limitation by protecting its passwords and other log-in information. Customer will notify MedWise immediately of any known or suspected unauthorized use of the Software or breach of its security and will use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the Software, Customer will comply with all applicable laws, including without limitation Privacy/Security laws.
5.4. Users & Software Access. Customer is responsible and liable for: (a) Users’ use of the Software, including without limitation unauthorized User conduct and any User conduct that would violate this Agreement applicable to Customer; and (b) any use of the Software through Customer’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the Software. MedWise retains all right, title, and interest in and to the Software, including without limitation all software used to provide the Software and all graphics, user interfaces, logos, and trademarks reproduced through the Software. This Agreement does not grant Customer any intellectual property license or rights in or to the Software or any of its components, except to the limited extent that such rights are necessary for Customer’s use of the Software as specifically authorized by this Agreement. Customer recognizes that the Software and its components are protected by copyright and other laws.
6.2. Feedback. MedWise has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Customer’s Clients, or other Users give MedWise, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict MedWise’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Feedback will not be considered Customer’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of MedWise’s products or services.)
7. CONFIDENTIALINFORMATION.
“Confidential Information” refers to the following items MedWise discloses to Customer: (a) any document MedWise marks “Confidential”; (b) any information MedWise orally designates as “Confidential” at the time of disclosure, provided MedWise confirms such designation in writing within five business days; (c) the Documentation and any business processes, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include MedWise’s valuable trade secrets.
7.1. Nondisclosure.Customer will not use Confidential Information for any purpose other than as specifically permitted under this Agreement (the “Purpose”). Customer: (a) will not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article; and (b) will not disclose Confidential Information to any other third party without MedWise’s prior written consent. Without limiting the generality of the foregoing, Customer will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer will promptly notify MedWise of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer will give MedWise prompt notice of any such legal or governmental demand and reasonably cooperate with MedWise in any effort to seek a protective order or otherwise to contest such required disclosure, at MedWise’s expense.
7.2. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate five years after the date of disclosure; provided that such obligations related to Confidential Information constituting MedWise’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer will return all copies of Confidential Information to MedWise or certify, in writing, the destruction thereof.
7.3. Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to MedWise; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that MedWise prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 7.3 does not limit either party’s right to injunctive relief for breaches not listed.)
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. MedWise will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual will not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS & WARRANTIES.
8.1. From MedWise. MedWise represents and warrants that it is the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the Software set forth in this Agreement without the further consent of any third party. MedWise’s representations and warranties in the preceding sentence do not apply to use of the Software in combination with hardware or software not provided by MedWise. In case of breach of the warranty above in this Section 8.1, MedWise, at its own expense, will promptly: (a) secure for Customer the right to continue using the Software; (b) replace or modify the Software to make it noninfringing; or if such remedies are not commercially practical in MedWise’s reasonable opinion, (c) refund the fees paid for the Software for every month remaining in the then-current Term following the date after which Customer access to the Software ceases as a result of such breach of warranty. If MedWise exercises its rights pursuant to Subsection 8.1(c) above, Customer will promptly cease all use of the Software and all reproduction and use of the Documentation and erase all copies in its possession or control. This Section 8.1, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and MedWise’s entire liability for breach of the warranty above in this Section 8.1.
8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Software; (c) all Customer Data and “personal information” provided or made available to MedWise, and the use, will not violate any Privacy/Security Law, and will not infringe the proprietary rights of any third party, including any intellectual property rights; (d) the Customer holds all the necessary rights and consents and has provided all necessary notices for the Customer Data and for the purpose of this Agreement including, but not limited to, all rights, consents and notices needed for MedWise to perform under this Agreement and as required by this Agreement and for MedWise to use the Customer Data and personal information for its own lawful purposes; (e) Customer has obtained the necessary consents for affiliates of MedWise to use the Customer Data for their purposes, and (f) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.3. Warranty Disclaimers. Except to the extent set forth in this Agreement and in Section 8.1 above, CUSTOMER ACCEPTS THE SOFTWARE “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) MEDWISE HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) MEDWISE DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) MEDWISE DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
9. INDEMNIFICATION.
Customer will defend, indemnify, and hold harmless MedWise and the MedWise Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Software, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer’s own customers; (b) claims related Data Incidents (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Software through Customer’s account, including without limitation by Customer Data; (d) claims that use of the Software through Customer’s account, including by Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; and (e) any breach of Customer’s representations or warranties under this Agreement. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO MEDWISE’S NEGLIGENCE. Customer’s obligations set forth in this Article 9 include, without limitation: (i) settlement at Customer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before Customers’ assumption of the defense (but not attorneys’ fees incurred thereafter). If Customer fails to assume the defense on time to avoid prejudicing the defense, MedWise may defend the Indemnified Claim, without loss of rights pursuant to this Article 9. MedWise will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a MedWise Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. (“MedWise Associates” are MedWise’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns. A “Data Incident” is any (1) unauthorized disclosure of, access to, or use of Customer Data, including without limitation Excluded Data, or (2) violation of Privacy/Security Law through Customer’s account. Data Incidents include, without limitation, such events caused by Customer, by MedWise, by Customer’s customers or other users, by hackers, and by any other third party.)
10. LIMITATION OF LIABILITY.
10.1. Dollar Cap. MEDWISE’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO MEDWISE IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.2. Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL MEDWISE BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY TO THE BENEFIT OF MEDWISE’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF MEDWISE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that MedWise has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 9, MedWise’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, MedWise’s liability limits and other rights set forth in this Article 9 apply likewise to MedWise’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. TERM & TERMINATION.
11.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order or, if none, for one month. Thereafter, the Term will renew for successive one-month periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
11.3. Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12.MISCELLANEOUS.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. MedWise may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to info@medwisemarketing.com, and such notices will be deemed received 72 hours after they are sent. In addition, Customer is on notice and agrees that: (a) for claims of copyright infringement, the complaining party may contact info@medwisemarketing.com; and (b) MedWise will terminate the accounts of subscribers who are repeat copyright infringers.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, pandemics, emergency orders, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without MedWise’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Michigan, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Michigan. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.8. Conflicts. In the event of any conflict between this Agreement and any MedWise policy posted online, including without limitation the Privacy Policy, the terms of this Agreement will govern.
12.9. Technology Export. Customer will not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export any software provided by MedWise or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Software in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
12.11. Amendment. MedWise may amend this Agreement from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives MedWise written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. MedWise may revise the Privacy Policy and Acceptable Use Policy at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Customer’s rights or protections, notice and consent will be subject to the requirements above in this Section 12.11.