END USER LICENSE AGREEMENT
THE MYSUPPORT SITE AND RELATED SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH YOU, THE END USER (DEFINED BELOW) MAY INTERACT WITH OR ENGAGE WITH HEALTHCARE OR OTHER PROVIDERS, INSURANCE CARRIERS AND/OR THEIR AGENTS, AND/OR CONSUMERS. YOU UNDERSTAND AND AGREE THAT MYSUPPORT PROVIDES THIS SITE MERELY TO FACILITATE THE FOREGOING NETWORK AND IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN YOU AND ANY SUCH PARTY WITH WHICH YOU INTERACT WITH OR ENGAGE VIA THIS SITE. MYSUPPORT ITSELF IS NOT RESPONSIBLE FOR ANY HEALTHCARE OR RELATED SERVICES THAT MAY RESULT FROM THE NETWORK OF USERS OF THE SITE. IN THIS REGARD, MYSUPPORT ITSELF IS NOT ANY OF THE PARTIES WHO PERFORM ANY SUCH HEALTHCARE OR RELATED SERVICES TO YOU VIA THE SITE. MYSUPPORT HAS NO CONTROL OVER THE CONDUCT OF ANY SUCH PARTY OR OVER ANY OTHER END USERS OF THE SITE OR SERVICES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
By either (i) completing the online registration at www.mysupport.com (the “Site”) and/or the applicable registration order form (each such form, an “Order Form” and the registration in general, the "Registration Process") or (ii) using any of the MySupport Services (as defined below) via the Site or (iii) clicking “agree” if prompted before accessing the Services, you (the "End User") are agreeing to be bound by the terms of this End User License Agreement (this “Agreement”) with MySupport Inc., on behalf of itself and its affiliates ("MySupport"). For purposes of this Agreement, affiliates shall mean any entity which is, directly or indirectly, controlling or controlled by MySupport.
As of the date on which the End User has completed the Registration Process or uses the Services (the "Effective Date"), in consideration of the mutual agreements contained herein and intending to be legally bound hereby, the End User and MySupport agree as follows:
- Services. MySupport will provide to End User the online hosted services, including the MySupport online platform application and/or other services provided on the Site (the “Hosted Services”) and/or professional services, if any (the “Professional Services”), as set forth in the Order Form and/or Registration Process (such Hosted Services and Professional Services each on their own or collectively being referred to in this Agreement as the "Services").
- Fees and Payments. Please refer to the Order Form or other applicable document as part of the Registration Process.
- Term. Unless the Order Form specifies an end date, this Agreement will commence upon the Effective Date and continue for so long as End User uses the Services, and/or for so long as there is an Order Form in place between the parties hereto.
- Termination. MySupport may terminate this Agreement immediately upon written notice to End User in the event End User has committed a material breach of this Agreement that remains uncured ten (10) days after initial written notice of such breach. Immediately, but in any event within twenty-four (24) hours upon expiration or any termination, End User shall remove all materials, tags and code placed on End User's website as part of the Services. MySupport may terminate this Agreement immediately (a) if End User fails to pay any outstanding invoices or fees due for the Services herein or (b) due to any breach by End User of Section 7 herein.
- Use of Brands; Press Releases. End User may not use MySupport’s name, trade name, trademarks and icons in connection marketing promotional or other purposes unless agreed to in advance in writing by MySupport.
License and Reservation of Rights.
- License. So long as End User is in full compliance with all of the Service Terms, MySupport grants to End User during the Term of this Agreement a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Hosted Services, and any software provided by MySupport (the “Software”) to access those Hosted Services, solely for the commercial purposes of using MySupport’s platform on the Site. MySupport may, in its discretion, offer modifications, updates, upgrades, patches and/or new versions (collectively, the “Standard Upgrades”) of the Site or underlying Software to End User. End User shall promptly install all Standard Upgrades, unless installation is not otherwise required by MySupport . The MySupport Services are delivered via an internet “cloud” based medium, however, so any modifications ,“patches” or other changes to the Software or Servies shall only be made by MySupport.
- Reservation of Rights. Except for the limited license set forth above, MySupport reserves all rights in and to the Services and Software and End User shall have no rights to the Services or Software except as expressly granted herein. MySupport reserves the right to discontinue or disable certain features and/or functionality of the Hosted Services that are outdated or otherwise not generally used by MySupport 's customers. All rights not granted herein are hereby reserved by MySupport.
- Acceptable Use of the Services. End User agrees that it will not: (a) modify, decompile, disassemble or reverse engineer, or cause or permit any other party to modify, decompile, disassemble or reverse engineer, MySupport 's Software or an other software provided by MySupport, or any other technology and/or other services; (b) sublicense any intellectual property of MySupport to third parties or sell, resell, rent, sublicense or lease the Services or any Software to third parties; (c) otherwise violate the license grant or restrictions set forth in Section 6 above; (d) use the Services to store or transmit malicious code; (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (f) attempt to gain unauthorized access to the Services or their related systems or networks; (g) alter, copy, move or delete any tags or code placed as part of the Services except as provided for in Section 4; (h) place tags on website pages not pre-approved by MySupport in writing; or (i) misappropriate any of MySupport’s software, technology or other services or use the Services, or permit enable or assist any third party, to create competing products or services, or modify MySupport’s intellectual property or use any of MySupport’s intellectual property unless otherwise agreed to by MySupport in a signed writing.
- Intellectual Property Rights. As between MySupport and End User, MySupport has and shall retain all rights to its Services and Software (including without limitation any materials or code provided as part of the Services), MySupport’s brands, technologies, information, trade secrets, know how, intellectual property, information and data generated by MySupport or MySupport’s systems, whether pre-existing, or created after the Effective Date, including any modifications, enhancements and derivatives thereof (including, without limitation, metrics, data and information generated by such Services and software), without regard to the basis of such modifications, enhancements or derivations. No implied licenses are granted herein to any of the foregoing.
- Confidential Information. MySupport and End User understand and agree that in connection with the negotiation and performance of this Agreement, each party hereto may have had or gain access to or may have been or be exposed to, directly or indirectly, private or confidential information of the other party hereto, including, but not limited to, trade secrets, computer programs and code, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), techniques, processes, methodologies, schematics, testing procedures, software design and architecture, design and function specifications, analysis and performance information, documentation, details of its products and services, know-how, ideas, and technical, business, financial or marketing information, models, pricing, plans and strategies, as well as names and expertise of, and information relating to, insurance carriers and/or related agents, vendors, employees, consultants, customers and prospects and any other information that the receiving party reasonably should know is confidential (“Confidential Information”). Each party hereto agrees to hold and treat all Confidential Information of the other party hereto in confidence and will protect the Confidential Information using all reasonable efforts, but in any event not less than the same degree of care as such party uses to protect its own Confidential Information of like nature. The Confidential Information will not, without the prior written consent of the other party, be disclosed to any third party except that the receiving party may disclose the Confidential Information or portions thereof to (a) its directors, officers, employees, agents and representatives on a need-to-know basis, so long as each such recipient agrees to be bound in writing to maintain the confidentiality of such information as set forth herein, or (b) as may be required by applicable law or judicial process, provided, however, that if the receiving party is required to disclose such Confidential Information under this clause (b), the receiving party shall promptly notify the disclosing party of such pending disclosure and consult with the disclosing party prior to such disclosure as to the advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information. Notwithstanding anything contained herein to the contrary, Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publically available sources generally known by the public (other than as a result of a disclosure by the receiving party or its representatives); (ii) is available to the receiving party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving party without violating its obligations under this Agreement or under any applicable law, and without using any Confidential Information. This Section shall supersede any previous agreement relating to confidential treatment and/or non-disclosure of Confidential Information; provided, however, that any information disclosed pursuant to that earlier agreement shall be deemed to be Confidential Information and protected under the terms of this Agreement as if this Agreement had been in place at the time of such disclosures. MySupport takes very seriously the protection of Confidential Information you provide during your use of the Site and will take all reasonable steps to safeguard such Confidential Information in accordance with this Section 10.
Limitation of Liability.
- In no event shall MySupport be liable for any indirect, incidental, consequential or punitive damages, including but not limited to lost profits, loss or delay of use, loss of business, loss of revenue, or loss of data, or any such damages resulting from death or labor or employment related liabilities or costs, arising out of or in relation to this Agreement or the Services. MySupport shall not be liable for any acts or omissions of third parties. In the event that applicable law does not allow the limitation of liability as set forth above, this limitation will be deemed modified solely to the extent necessary to comply with applicable law.
- In no event shall MySupport be liable for any cause or claim whatsoever arising out of or related to this Agreement in excess of the amounts MySupport has been paid hereunder by End User during the twelve (12) month period immediately preceding the date on which the cause of action arose. In the event that applicable law does not allow the limitation of liability as set forth above, this limitation will be deemed modified solely to the extent necessary to comply with applicable law.
- The foregoing limitations and exclusions will apply regardless of whether the cause of action arises in contract, in tort or otherwise and notwithstanding the failure of the essential purpose of any remedy or negligence.
- Indemnity. If a third party claims (each such claim a “Third Party Claim”) against MySupport that (a) End User's intellectual property, data or content provided to MySupport infringes such third party's patent issued as of the Effective Date, copyright or trademark or other intellectual property rights; or (b) the third party has been damaged by an act or omission constituting End User's breach of this Agreement (including but not limited to any misuse of patient or other data provided by End User, any death, labor or employment related costs resulting from End User’s use of the Site); or (c) the third party has been damaged from End User's use of the Services under this Agreement, End User will defend, indemnify and hold MySupport harmless from and against that claim at End User's sole expense and pay all costs, damages and reasonable attorney's fees finally awarded by a court of competent jurisdiction. For the avoidance of doubt, a “Third Party Claim” for which End User shall indemnify and hold MySupport harmless, includes any claim against MySupport by a third party which arises out of or results from any healthcare or other services engaged by and between End User and any supplier or consumer through the Site, whether such third party claimant is End User, a provider or some other third party.
- Force Majeure. MySupport shall not be liable to End User or any other person for any delay or failure in the performance of this Agreement or for loss or damage of any nature whatsoever suffered by such party due to disruption or unavailability of communication facilities, utility or Internet service provider failure, acts of war, acts of terrorism, acts of vandalism, lightning, fire, strike, unavailability of energy sources or any other causes beyond MySupport’s reasonable control.
- Login. End User shall maintain its login name and password in confidence and shall not share its login information with any third party. End User shall be responsible for any and all activity on the login, regardless of whether such activity was performed or approved by End User.
- Independent Applications. From time to time, third party software applications, plug in or other add-on online applications that integrate, interoperate or interact with MySupport’s Services (the “Applications”) may become available. If End User chooses to install, access or enable an Application, End User agrees that the third party Application provider may acquire access to End User’s account data and information data as required for the interoperation or integration of such Application and Applications are not, for the avoidance of doubt, considered Services under this Agreement and are not maintained, monitored, tested, controlled, endorsed, provided, verified, validated or reviewed by MySupport . Accordingly, such Applications are governed by their own terms and conditions and are not considered Services under this Agreement.
- Entire Agreement. This Agreement, together with the Order Form and/or the Registration Process, as applicable, contains the entire agreement of the parties hereto, and supersedes any and all previous agreements addressed herein or with respect to the subject matter hereof, whether oral or written.
- Notices. Subject to Section 19 below, all notices shall be in writing and shall be sent by certified mail, return receipt requested, or by wire communications (e.g., facsimile) to the respective contact at the addresses listed in the Order and/or Registration Process, or as otherwise provided to the other party in writing, or via email if receipt is validly confirmed. Subject to Section 19 below, the effective dates of such notice shall be (1) upon evidence of a successful facsimile or email transmission, or (2) five days following the date of mailing for certified or registered letters and two days following the date sent for overnight letters. The above addresses may be changed at any time by giving prior written notice as above provided.
- Miscellaneous. MySupport hereby rejects any terms or conditions appearing on any purchase order or other supplements that are in addition to, or different from, the terms and conditions of this Agreement (the “Modifications”), and the parties hereto agree that all such Modifications shall be void and of no force or effect. Use of one or more of the Services shall indicate End User’s agreement with these terms without modification. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by End User without MySupport 's express prior written consent. MySupport may assign this Agreement freely, including to any successor to its business in whole or in part without requiring any consent or notice to End User. No failure by either party to exercise or enforce any rights under this Agreement shall act as a waiver of such rights. The parties hereto are independent contractors and neither this Agreement nor the performance of Services shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between the parties hereto; and neither party hereto will have the right, power or authority (whether expressed or implied) to enter into or assume any duty or obligation on behalf of the other party. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and the unenforceable provision shall be interpreted so as to render it enforceable while approximating the parties’ intent as closely as possible. This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the state of New York. Each party hereto expressly waives its right to a trial by jury. This Agreement should not be construed in favor of or against any party hereto by reason of the extent to which any party hereto or its professional advisors participated in preparation or drafting of this Agreement. Amendments to this Agreement may be made by MySupport at any time. The modified agreement will be effective immediately upon posting on the MySupport website and End User agrees to the new posted agreement by continuing the use of the Services. MySupport will use reasonable efforts to notify End User of modifications that are material to End User’s use of the Services or Software, which modification may be provided by email or a notification posted to End User’s account. If End User does not agree with the modified agreement, End User's only remedy is to (a) discontinue using the Services and discontinue using any and all independent applications, adapters and labs applications, and (b) terminate this Agreement in accordance with its terms. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. Sections 7 through 13 (and, particularly of note, the limitations set forth in Section 12) and Sections 18 through 19 shall survive the expiration or termination of this Agreement.