Six Ways to Lower Rising Health Costs for Companies
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PLEASE READ THESE TERMS AND CONDITIONS (THE “AGREEMENT”) BEFORE USING THE PLATFORM (AS DEFINED BELOW). IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY HAVE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THIS AGREEMENT. BY ACCESSING OR USING THE PLATFORM, YOU (THE “CLIENT”) SIGNIFY ACCEPTANCE OF, AND AGREE TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT BETWEEN CLIENT AND MEDEFY HEALTH INC., A DELAWARE CORPORATION, WITH HEADQUARTERS AT 15 E. 5TH ST. 27TH FLOOR, TULSA, OK 74103 (“MEDEFY”). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE PLATFORM. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ANY ORDERS PLACED BY CLIENT (EACH, A “CLIENT ORDER”), THAT AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.
THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE WHICH IS THE EARLIER OF (A) CLIENT’S INITIAL ACCESS TO THE PLATFORM OR (B) THE EFFECTIVE DATE OF THE FIRST CLIENT ORDER REFERENCING THIS AGREEMENT. THIS AGREEMENT WILL GOVERN CLIENT’S INITIAL PURCHASE ON THE EFFECTIVE DATE AS WELL AS ANY FUTURE PURCHASES MADE BY CLIENT THROUGH A CLIENT ORDER THAT REFERENCES THIS AGREEMENT. FROM TIME TO TIME, MEDEFY MAY MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT. UNLESS OTHERWISE SPECIFIED BY MEDEFY, CHANGES BECOME EFFECTIVE FOR CLIENT UPON RENEWAL OF THE THEN-CURRENT CLIENT ORDER TERM OR UPON THE EFFECTIVE DATE OF A NEW CLIENT ORDER AFTER MEDEFY PUBLISHES AN UPDATED VERSION OF THIS AGREEMENT..
1.1 Use of Platform. Subject to the terms and conditions of this Agreement, during the Term (as defined in Section 6 below), Client shall have a non-exclusive, non-transferable, non-sublicensable right to use: (a) Medefy's technology platform as detailed in a Client Order and related healthcare concierge, prescription fulfillment guidance and other services (collectively, the “Platform”) and (b) all marketing documentation related to the Platform ("Marketing Material") and supplied by Medefy hereunder. Client may use the Platform for its own internal purpose and may permit its Members (as hereinafter defined) to use the Platform for their own benefit; provided, that the use of the Platform by Client’s Members shall be subject to the End User Terms of Service located at medefy.com/end-user-terms (the “End User Terms”). Client acknowledges and agrees that Medefy may, from time to time, make updates or modifications to the Platform, and that Client’s right to use the Platform will be limited to the then-current version of the Platform made available by Medefy from time to time.
1.2 Restrictions on Use. Notwithstanding anything to the contrary in this Agreement, the rights granted in Section 1.1 above do not authorize Client to, and Client will not (directly or indirectly) and save to the extent allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) reproduce (except for a number of copies of the Marketing Material as reasonably required for the promotion of the Platform), modify, adapt, alter, translate, or create derivative works of the Platform or Marketing Material; (ii) rent, lease, loan, sell, distribute, disseminate, disclose, publish, display, transfer or otherwise make available (including on a time share, application service or outsourced basis) the Platform to any third-party (except to Members); (iii) reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the source code, architecture, structure, or underlying technology of the Platform, except as and only to the extent any part of this restriction is prohibited by applicable law; (iv) use the Platform for purposes of (A) engaging in any activities in violation of applicable laws, rules or regulations or (B) competitive or benchmarking analysis or for development of a competing product, service or other offering; (v) gain unauthorized access to, interfere with, damage or disrupt any portions of the Platform (including any servers, databases or accounts), or attempt to do any of the foregoing; (vi) introduce into the Platform any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful, or (vii) use the Platform in any manner that could disable, overburden, damage, or impair the Platform or interfere with the authorized use of the Platform by others.
1.3 Ownership of Platform. Client acknowledges and agrees that Medefy will at all times exclusively own all right, title, and interest in and to (a) any Marketing Material, (b) any and all products and services of Medefy including, but not limited to, the Platform, and (c) Medefy's logos, trademarks and service marks and all goodwill associated therewith. Client shall not make any use of, copy, make derivative works from, or sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner to any third party, any such materials or any portion thereof except as expressly permitted herein. During the Term, Medefy hereby grants to Client a limited, non-exclusive, non-transferable, royalty-free, and revocable license to use, make copies of and display the Marketing Material solely as necessary to promote the Program in accordance with the Client Order and this Agreement. Any goodwill developed as a result of such use or display will inure exclusively to the benefit of Medefy. Except for those rights that are expressly granted herein, Client will not grant, nor claim for Client or other affiliated entities, independent contractors or employees, either expressly or implicitly, any other right, title, interest, or license in or to any of the foregoing materials or rights.
2.1. Promotion of Platform by Client. Client shall promote the use of the Platform to any employee ("Employees"), and/or such Employees’ dependents who are eligible to use the Platform as shown on the Client Order ("Eligible Dependents" and, together with Employees, “Members”).
2.2. Benefits and Eligibility Data.A. Benefits Data. Client, or its designated Benefits Associate (as hereinafter defined), shall submit or cause their Third Party Administrator (“TPA”), Benefits Administration system or other agent to submit to Medefy all necessary data such as, but not limited to, medical eligibility files, schedules of benefits, formulary data, accumulator data, provider directories, network data, national pre-authorization procedures, clinical policy bulletins and a listing of third-party vendors that service Client’s health plan (the “Benefits Data") in order to reflect Client's benefits in the Platform and shall provide any updated Benefits Data at the time of a benefit renewal or in the event of a material change. Client understands that Benefits Data limitations may cause corresponding functionality limitations in the Platform and further agrees that any delay in providing the Data to Medefy may delay the successful rollout of the Platform to Client’s Members. Due to the nature of the Client’s agreements with their TPA, data provider, and/or broker, transmission of Benefits Data to Medefy may incur fees (either on a single use or ongoing basis). Such fees are the sole responsibility of Client. For purposes of this Agreement, "Benefits Associate" means certain third parties that provide services to Client, such as an employee benefits portal, advisor, consultant, referenced-based pricing repricer, broker, or TPA, and in connection with such provision of services to Client may be providing Benefits Data to Medefy in connection with this Agreement.B. Claims Data. Client shall provide, or shall cause its Benefits Associate, as applicable, to provide claims data (for both healthcare and prescription) to Medefy as reasonably necessary in connection with the operation of the Platform (such data, “Claims Data”). As between the parties, Client is solely responsible for the accuracy of all Claims Data provided to Medefy. Should Claims Data be provided to Medefy, from any source, that is inaccurate or out of date, Medefy is not responsible for errors or omissions in the provision of the Platform made in reliance on such data.C. Eligibility Data. Client shall ensure that the entity set forth on the Client Order shall supply Medefy with eligibility data (“Eligibility Data” and, together with Benefits Data and Claims Data, “Data”) upon implementation of the Platform and updated eligibility data, in the format required, on, at minimum, a monthly basis, throughout the Term (as hereinafter defined). All Eligibility Data shall be delivered to Medefy via an SFTP location hosted by Medefy. Client understands that the entityproviding the Eligibility Data may charge a separate fee that will be the Client’s sole responsibility.D. Ownership and use of Data. As between Medefy and Client, Client owns the Data. Client hereby grants and agrees to grant to Medefy, a limited-term, worldwide, non-exclusive, transferable, sublicensable, royalty-free license to host, copy, reproduce, transmit, display, and process the Data during the Term as reasonably necessary to: (i) provide the Platform to Client; and (ii) to monitor, modify, adapt, and improve (including develop) the Platform.E. Responsibility for Data. Except for Medefy’s obligations described in Section 5 (Confidentiality) and the Business Associate Agreement, Client shall: (i) have sole responsibility for and comply with all laws applicable to the accuracy, quality, processing, and right to possess all Data, the means by which Client acquired the Data and the right to provide the Data for the purposes of this Agreement (including abiding by all applicable laws in the transmission of Data and ensuring the receipt of all permissions from individuals and other third parties as may be necessary in order to provide the Data under this Agreement); (ii) be responsible for maintaining a back-up of all Data; and (iii) prevent unauthorized access to, or use of, the Platform, and notify Medefy promptly of any unauthorized access or use. Client acknowledges that Medefy exercises no control over the Data transmitted by Client or its Members to or through the Platform. Medefy and Client acknowledge and agree that certain Data may be provided by a TPA and that Medefy shall not be responsible for the accuracy or completeness of such Data.
2.3. Assistance with Promotion of Platform by Medefy. Client shall authorize Medefy to communicate directly with Members for the purposes of (a) promoting the Platform and (b) addressing matters related to treatment, payment and health care operations. In furtherance of the foregoing, Client shall promptly approve or disapprove draft Member Marketing Materials (defined in Section 3.3) proposed by Medefy. If Member Marketing Materials are not approved or disapproved by Client within 5 business days, such Member Marketing Materials will be deemed to be accepted by Client and will be distributed by Medefy to Members.
2.4. White Label Marketing. If white labeling in the Client’s name, Client shall provide to Medefy Client’s company logo in a format specified by Medefy, as well as be solely responsible for the maintenance and costs associated with any required mobile developer accounts, including Apple Developer and Google Play/Android Developer accounts. Client shall also list designated specified Medefy employees as authorized users to the developer accounts.
2.5. Client Logo. Client hereby grants to Medefy a non-exclusive, non-transferable (except in connection with an assignment of this Agreement) license to use Client’s name, trademarks, service marks and logos (collectively, the “Client Marks”) in connection with Medefy’s fulfillment of its obligations hereunder, including Medefy’s promotion of the Platform to Members and Medefy’s development, promotion and support of a white label platform in Client’s name. Medefy will use the Client Marks in accordance with the trademark usage guidelines or samples provided by Client from time to time hereunder.
3.1. Support for Platform. Medefy shall deliver and support the Platform. Certain Platform features may not be available in the event they are not supported by Client’s or its TPA’s systems, Data or delivery capabilities, and Medefy is not responsible and will not discount fees for the unavailability of those features. Medefy shall, during the Term, provide Client with all updates, error corrections, modifications, or enhancements ("Updates") for those Platform modules used by Client, in each case to the extent such Updates are generally provided to Medefy’s customer base at no additional fee. Upon request, and at Medefy’s sole discretion, material enhancements may be provided for agreed supplemental compensation. All Updates and agreed enhancements shall become part of the Platform.
3.2. Member Marketing Materials. Medefy shall deliver and publish digital Member marketing materials, with content and delivery schedules developed by Medefy and approved by Client (“Member Marketing Materials”). In no event shall MemberMarketing Materials include marketing channels outside of email, push notification and text messaging without agreement by Medefy, which may include additional fees based on the amount of additional work performed by Medefy (“Custom Marketing Fees”). Medefy will invoice Custom Marketing Fees to the Paying Party at the beginning of the month following Client or Paying Party approval of such Custom Marketing Fees. Client is responsible for ensuring that it has adequate rights to all Member information used by Medefy in connection with its marketing efforts hereunder, including the right for Medefy to initiate marketing communications with Members via telephone, email, SMS and other means .Medefy may develop and publish custom health plan-related Member marketing materials for Client that include different delivery channels (e.g. print, targeted online advertising, etc.) and topics unique to Client. Such custom material will be subject to Custom Marketing Fees, to be mutually agreed upon by Medefy, Client and Paying Parting (as defined herein and if different than Client) prior to the development of such customer materials.
3.3. Member Support. Medefy shall provide Client with account management, reporting and Member service to provide support for usage of the Platform. In addition, Medefy shall be responsible for providing support directly to Members in accordance with the End User Terms.
4.1. Paying Party. During the Term, Medefy will be paid by the entity set forth on the Client Order (“Paying Party”). If the Paying Party is an entity other than Client, the Paying Party shall execute a Third-Party Billing Agreement with Medefy. Regardless of whether a Client Order stipulates a Paying Party that is not the Client, the Client shall remain jointly and severally responsible for the timely payment of all fees payable hereunder. In the event of any payment default by Paying Party, Client may continue to access the Platform by direct payments of all charges and fees payable hereunder.
4.2. Initial Invoice. The Paying Party shall pay an initial invoice equal to the setup and integration fee outlined in the applicable Client Order (the “Initial Invoice”). The Initial Invoice shall be due and payable upon receipt by Paying Party. In the event the Initial Invoice remains unpaid, Medefy reserves the right to delay Platform availability for Members.
4.3. PEPM Fees. The Paying Party will pay to Medefy per employee per month (“PEPM”) fees for the Platform and any third-party vendors in accordance with pricing outlined in the applicable Client Order. The PEPM fees will be invoiced by Medefy beginning on the earlier of (i) the date that the Platform goes live and is made available to Members or (ii) four (4) months from execution of the Client Order (either, the “Launch Date”) and, thereafter, at the beginning of every calendar month during the Term for that month’s services (each, a “Monthly Invoice”).
4.4. Calculation of Monthly Invoice. Each Monthly Invoice will be calculated based on the number of eligible Employees employed by Client at the beginning of the applicable calendar month. Medefy will conduct a monthly true-up at the end of each month comparing the actual number of eligible Employees (based on the total number of eligible Employees during a calendar month, including all persons who were eligible Employees for only a portion of the calendar month) (such number, the“Actual Employee Count”) versus the number of eligible Employees included on the Monthly Invoice issued to Client at the beginning of the applicable month. If the Actual Employee Count is greater than the number of eligible Employees included in the Monthly Invoice issued at the beginning of the applicable month, Medefy will invoice Client for the additional eligible Employee(s).For clarity, in no event shall Client be entitled to a refund or reduction in the amounts paid or payable under a Monthly Invoice, even if the Actual Employee Count is fewer than the number of eligible Employees included in the Monthly Invoice issued at the beginning of the applicable month. Client’s estimated number of eligible Employees as of the Effective Date is set forth on the initial Client Order. Medefy will also conduct a monthly true-up regarding any utilization fees charged by third-party vendors. All amounts payable by Client in connection with a monthly true-up shall be invoiced in the following month’s Monthly Invoice. Any additional charges, including fees for services above any annualized utilization rates for a month, if applicable, will be included on the following invoice.
4.5. Payment Terms. All invoices will be due and payable within 30 days of the invoice date. If any amounts owed by the Paying Party (other than charges disputed in good faith within 30 days of the invoice date) are not paid within such 30 day timeline, Medefy may, without limiting any of its other rights and remedies, suspend the Platform until such amounts are paid in full. All unpaid invoices shall accrue interest at the greater of 1.5% per month (compounded monthly) or the highest rate permitted under applicable laws.
4.6. Changes in PEPM Fees. The PEPM will automatically increase for each Renewal Term by an amount equal to five percent (5%) of the PEPM for the preceding Term, as applicable. Notwithstanding the foregoing, Medefy reserves the right to increase the PEPM by a greater amount by providing written notice to the Paying Party at least sixty (60) days prior to the expiration of the then-current Term.
4.7. Taxes. Client is responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Client’s purchase and use of the Platform, excluding taxes based on Medefy’s net income. If Medefy has a legal obligation to pay or collect taxes for which Client is responsible under this Agreement, the appropriate amount shall be computed based on Client’s address listed in the Client Order and invoiced to and paid by Client, which amounts are in addition to the Initial Invoice fees, PEPM fees and other amounts payable thereunder, unless Client provides Medefy with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.1. Confidential Information. In connection with this Agreement each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party''). "Confidential Information" means information in any form or medium (whether oral, written, electronic, or otherwise) that the Disclosing Party considers confidential or proprietary, or the Receiving Party should reasonably know is considered confidential or proprietary based on the nature of the information or the circumstances surrounding its disclosure, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, clients, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential".
5.2. Non-Use and Non-Disclosure. The Receiving Party shall not use any Confidential Information disclosed to it by Disclosing Party for any purpose other than to carry out its obligations hereunder. The Receiving Party shall hold the Confidential Information in strict confidence and shall not, without Disclosing Party's prior written consent, disclose or permit disclosure of any Confidential Information of Disclosing Party to any person or entity, except to employees, officers, consultants, contractors and/or agents of Receiving Party (the “Representatives”) who are required to have such Confidential Information in order to carry out the obligations hereunder and are under obligations of confidentiality substantially similar to those contained herein. Each Receiving Party shall be responsible for any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by its Representatives.
5.3. Exceptions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives’ noncompliance with this Agreement; (c)was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
5.4. Return or Destruction. Upon the termination or expiration of this Agreement, or at any time upon request of the Disclosing Party, the Receiving Party will promptly return all items and materials, including any copies, in its possession, custody, or control which contain any Confidential Information of the Disclosing Party. All notes or other work product containing Confidential Information will be destroyed, and such destruction will, if requested by the Disclosing Party, be certified in writing to the Disclosing Party by an authorized representative of the Receiving Party who supervised such destruction. The obligations concerning Confidential Information set forth herein will survive the termination or expiration of this Agreement.
5.5. Compliance. The parties agree that the terms of this Agreement have been negotiated in an arms-length transaction between the parties and have not been determined in a manner which takes into account the volume or value of any referrals or business that otherwise may be generated between the parties or any entities affiliated with the Parties. The parties further agree that this Agreement does not involve the counseling or promotion of a business arrangement that violates state or federal law. The parties are entering into this Agreement with the intent of conducting their relationship and implementing the provisions hereof in full compliance with applicable federal, state and local law, including, without limitation, 42 U.S.C. § 1320a-7b(b) (the Medicare/Medicaid Anti-Kickback Statute) and 42 U.S.C. § 1395nn (the Federal Self-Referral Law), as the same may be amended.
5.6. Feedback. To the extent Client or an of its associated Members provide any suggestions for modification or improvement or other comments, code, information, know-how, or other feedback (whether in oral or written form) relating to the Platform (“Feedback”), Client hereby grants to Medefy a perpetual, irrevocable, worldwide, non-exclusive, transferable, sublicensable, royalty-free license to use and commercially exploit the Feedback in any manner Medefy sees fit without accounting or other obligation.
6.1. Term. The initial term (the "Initial Term") of this Agreement shall begin as of the Effective Date and remain in effect for the period set forth in the applicable Client Order. Following expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each, a "Renewal Term" and, together with the Initial Term, the “Term”) unless either Party gives the other written notice of intent not to renew, at least thirty (30) days before the end of the then current Term.
6.2. Termination for Breach. Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement or any Client Orders within thirty (30) days after receipt of written notice of the breach. In the event Medefy terminates this Agreement because of Client’s material breach, all unpaid fees under the then-effective Client Orders shall be accelerated and become immediately due and payable. For clarity, the following shall be deemed a material breach of this Agreement by Client:
(i) Client has conducted business in violation of applicable laws and/or regulations;
(ii) Client has forfeited or otherwise no longer holds all necessary applicable licenses; or(iii) Client becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, or files or has filed against it a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law.
6.3. Effective of Termination. Upon termination or expiration of this Agreement, Client shall immediately cease to have any rights with respect to the Platform and shall immediately cease to use, in any manner whatsoever, the name "Medefy" or any of its logos, tag lines, forms, manuals, slogans, signs, marks, symbols, or devices used in connection with the operation of the business licensed hereunder. The following provisions of this Agreement shall survive any expiration or termination hereof: Sections 1.3, 4, 5, 7, 8, and 9.
7.1 Indemnification by Medefy. Subject to Section 7.3 (Indemnity Process) below, Medefy will defend Client from any and all claims, demands, suits, or proceedings brought against Client by a third party alleging that the Platform, as provided by Medefy to Client under this Agreement, infringe any patent, copyright, or trademark or misappropriate any trade secret of that third party (each, an “Infringement Claim”). Medefy will indemnify Client for all damages and costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, authorized arbitral panel, or paid to a third party in accordance with a written settlement agreement signed by Medefy, in connection with an Infringement Claim. In the event an Infringement Claim is brought, or in Medefy’s reasonable opinion is likely to be brought, Medefy may, at its option: (a) procure the right to permit Client to continue use of the Platform, (b) replace or modify the Platform with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (c) if the foregoing options are not reasonably practicable, terminate the applicable Client Order and repay to Client any prepaid fees paid by Client under the Client Order to Medefy with respect to any period of time following the termination date. Notwithstanding the foregoing, Medefy shall have no liability for any Infringement Claim of any kind to the extent that it relates to (i) modification of the Platform by a party other than Medefy, (ii) use of the Platform in combination with any other product, service, or device, if the infringement would have been avoided by the use of the Platform without the other product, service, or device, or (iii) use of the Platform other than in accordance with this Agreement. The indemnification obligations set forth in this Section 7.1 are Client’s exclusive remedy and Medefy’s sole liability with respect to Medefy’s infringement or misappropriation of third-party intellectual property rights of any kind.
7.2 Indemnification by Client. Subject to Section 7.3 (Indemnity Process), Client will defend Medefy and its affiliates from all claims, demands, suits, or proceedings brought against Medefy (i) alleging a violation of a Member’s or third party’s rights arising from or related to the Data, including the Client’s provision of the Data to Medefy or its affiliates or their respective use of the Data in connection with providing the Platform in accordance with this Agreement (including the use of any Data for permitted marketing activities) or (ii) resulting from any treatment or services that a Member may receive from health care and diagnostic service providers. Client will indemnify Medefy for all damages and costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, authorized arbitral panel, or paid to a third party in accordance with a written settlement agreement signed by Client, in connection with any such claims, demands, suits, or proceedings. The indemnification obligations set forth in this Section 7.2 are Medefy’s exclusive remedy and Client’s sole liability with respect to Client’s infringement or misappropriation of third-party's rights arising from or related to its Data..
7.3 Indemnification Process. The party seeking indemnification under this Section 7 (“Indemnitee”) must (a) promptly notify the other party (“Indemnitor”) of the claim (provided that any failure to provide prompt written notice will only relieve the Indemnitor of its obligations to the extent its ability to defend a claim is materially prejudiced by the failure), (b) give the Indemnitor sole control of the defense and settlement of the claim (provided that Indemnitor shall not consent to entry of any judgment or admission of any liability of the Indemnitee without the prior written approval of the Indemnitee), and (c) provide reasonable assistance, cooperation, and required information with respect to the defense and settlement of the claim, at the Indemnitor’s expense. At its own expense, the Indemnitee may retain separate counsel to advise the indemnitee regarding the defense or settlement of the claim.
8.1. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDEFY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, ACCURACY OF INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, NONINTERFERENCE WITH ENJOYMENT OR OTHERWISE. MEDEFY DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OF THE PLATFORM WILL BE ERROR FREE OR UNINTERRUPTED. MEDEFY MAKES NO WARRANTY REGARDING ANY NON-MEDEFY APPLICATION WITH WHICH THE PLATFORM MAY INTEROPERATE.
8.2. Third-Party Services. Medefy may use third parties to deliver certain services to Client through its platform. Medefy reserves the right to enter into agreements with third parties, to terminate any existing agreements, and enter into future agreements with other third parties to deliver any services elected by Client. Services provided by third parties may be subject to additional terms and conditions, limitations, and fees, including utilization fees, which will be made available to Client. In addition, Client acknowledges and agrees that the Platform may operate on or with products, applications and/or services provided by Client or a third-party (“Outside Technologies”), including through the use of application programming interfaces (APIs). As between the parties, Client is solely responsible for its use of Outside Technologies, and Medefy is not responsible or liable for Client’s acquisition and/or use of such Outside Technologies, including, if applicable, all transmission of data through such Outside Technologies. In addition, Client acknowledges and agrees that Client’s use of Outside Technologies may impact the performance or availability of the Platform, and Medefy has no obligation to remediate or compensate any such performance or availability issues caused, in whole or in part, by the use of Outside Technologies with the platform. To the extent the use of any Outside Technology requires Client to possess API keys or other access credentials, Client is fully responsible for obtaining all such keys, credentials, or rights, including the right to use such Outside Technology.
8.3. Telemedicine Services and Prescription Fulfillment Guidance. The Platform may enable Members to identify and contact telemedicine healthcare providers. Medefy is not a healthcare provider, insurance provider, or a prescription fulfillment warehouse. Medefy’s role is limited to making certain telehealth related information available to Members and/or facilitating Members’ access to telemedicine services provided by third-party healthcare providers. Medefy is not responsible for healthcare providers’ acts or omissions or for any content of Members’ communications with them. Medefy is independent of the healthcare providers, and does not employ or otherwise exercise any control over the services provided by healthcare providers. In addition, the Platform may include certain information to assist Members in optimizing their prescription expenses. Such information is not intended to be a substitute for the advice or guidance of a qualified healthcare professional, and Medefy will not be responsible for any reliance on such information by a Member.
8.4. LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE MAY BE EXPRESSLY PROHIBITED BY APPLICABLE LAW AND EXCEPT FOR ANY DAMAGES PAYABLE PURSUANT TO AN INDEMNITY OBLIGATION HEREUNDER OR IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING CLIENT’S BREACH OF THE RESTRICTIONS SET FORTH IN SECTION 1.2) (COLLECTIVELY, THE “EXCLUDED CLAIMS”), UNDER NO CIRCUMSTANCES SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. EXCEPT AS OTHERWISE MAY BE EXPRESSLY PROHIBITED BY APPLICABLE LAW AND EXCEPT FOR ANY EXCLUDED CLAIMS, EACH PARTY'S MAXIMUM LIABILITY SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CLIENT TO MEDEFY DURING THE PRECEDING TWELVEMONTH PERIOD.
9.1. Entire Agreement. These terms and conditions, in combination with the Client Order, the End User Terms and Business Associate Agreement constitute the entire agreement by and between Medefy and Client relating in any manner to the subject matter herein, and any representation, warranty, covenant, understanding or agreement not contained or incorporated in it by reference shall be of no force or effect. This Agreement and each Client Order supersedes all prior proposals, discussions, writings, and agreements between the Parties (whether written, oral or otherwise) relating to the subject matter hereof and thereof. In the event of any conflict between this Agreement and a Client Order, the conflicting language in the Client Order shall supersede solely with respect to the applicable Client Order. In the event of any conflict between this Agreement and the Business Associate Agreement, the conflicting language in the Business Associate Agreement shall supersede with respect to the processing of protected health information by Medefy in its capacity as a business associate to Client.
9.2. Assignment. Neither Party may assign the Client Order or any rights, duties or obligations contained herein, to any other person, firm, corporation or other business entity without the prior written consent of the other Party (which consent shall not be unreasonably withheld or otherwise delayed) except that this Agreement and any Client Order may be assigned by Medefy to any of its parent, subsidiary or affiliate organizations or any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to (a) all or substantially all of its business assets to which this Agreement relates or (b) a majority of its issued and outstanding equity interests.
9.3. Amendment. The Client Order and this Agreement may each only be amended by the mutual written consent and agreement of the parties.
9.4. Press. Medefy reserves the right to use Client's name, logo, and/or project in a press release, in Medefy's general list of serviced Clients, or to demonstrate Medefy's capabilities to third parties, including but not limited to, press, analysts, prospective clients, and investors. Further, Medefy may develop a case study outlining Client's project goals and results and publish such case study or otherwise freely use it for marketing purposes.
9.5. Severability. If any one or more of the provisions of the Client Order or this Agreement or any portion thereof, or the application thereof to any person or circumstances, shall be held or declared to be invalid, illegal, void, or unenforceable, such provision shall be severed and the remainder of this Agreement (or of such provision) shall not be affected and shall remain in full force and effect. Furthermore, the severed provision shall be interpreted in a manner which accomplishes, to the extent possible, the original purpose of such provision.
9.6. Notices. All notices required or permitted herein shall be in writing, served personally on, delivered by recognized overnight courier or mailed by certified or registered United States mail to, or emailed to the party to be charged with receipt thereof at the address first listed in this Agreement, or as updated by a party during the Term. With respect to Medefy, all notices shall be delivered to legal@medefy.com.
9.7. No Waiver. No waiver or modification of any provision of the Client Order or this Agreement may be made unless by a written instrument duly executed by the party waiving its right or obligation hereunder. Any waiver or breach of any term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other term or condition.
9.8. Independent Contractors. The relationship between Medefy and Client shall at all times be that of an independent contractor. Nothing in this Agreement shall be construed to create any partnership, association, joint venture or employment between the Parties.
9.9. Governing Law; Venue; Waiver. This Agreement and each Client Order shall be governed by and construed in accordance with the laws of the State of Oklahoma without giving effect to any conflict of law principles. The parties irrevocably submit to the exclusive jurisdiction of any federal or state courts sitting in Tulsa County in the State of Oklahoma in any action or proceeding arising out of or in any way relating to the Client Order or these Terms and Conditions. Each Party waives any and all objections it may have to the exclusive jurisdiction of such courts. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
9.10. Incorporation by Reference. These Terms and Conditions are incorporated by reference in the Client Order.
9.11. Electronic Signatures. Each party agrees that the Client Order and Business Associate Agreement may be executed by electronic signatures. Such signatures or data, whether digital or encrypted, are intended to authenticate and/or complete this writing and are deemed to have the same force and effect as manual signatures.
9.12. Attorneys' Fees. If any legal action is brought for the enforcement of any provision of this Agreement, any Client Order or the Business Associate Agreement, the prevailing Party shall be entitled to recover from the non-prevailing Party such prevailing Party’s reasonable attorneys' fees (including reasonable attorneys' fees for any appeal), legal fees, and any other costs and expenses in addition to any other relief to which such prevailing Party may be entitled.
