IMPORTANT: READ CAREFULLY
ExtensionMD Terms & Conditions
END-USER LICENSE AGREEMENT
This End-User License Agreement (“EULA” or “Agreement”) is a legal agreement between You (either an individual or a single entity) and ExtensionMD, LLC (“XMD”) for its online service and related devices as defined below (the “Product”). This EULA governs your trial (if applicable), purchase and ongoing use of the Product, whether or not you have paid for use of the Product.
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE, DO NOT USE THE PRODUCT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, INCLUDING BUT NOT LIMITED TO A HEALTH CARE ORGANIZATION, MEDICAL GROUP OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCT. YOU WILL NOT BE CHARGED UNLESS YOU USE THE PRODUCT.
You may not access the Product if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Product for purposes of monitoring the Product availability, performance or functionality, or for any other benchmarking or competitive purposes.
Your agreement to this EULA includes an acknowledgment of your review of Our Privacy Policy and specifically our HIPAA Privacy Statement.
See DEFINITIONS section at the end.
1. GENERAL GRANT OF LICENSE
1.1. General Grant. In general, for each license you have acquired for the Product, you have unlimited, non-exclusive rights of use within Your organization.
1.2. Individual License. If You are an individual, We grant to you as an individual, a personal, nonexclusive license to use the Product in accordance with the terms of this EULA, provided that you are the only individual using the Product.
1.3. Entity License. If You are an entity or are registering on behalf of an entity, We grant to You the right to designate individuals within your organization to have the right to use the Product in accordance with the terms of this EULA.
1.4. Separation of Components. The Product is licensed as a single product. Its Component parts may not be separated for use for any reason and by any means.
1.5. Update License Terms. All Updates shall be considered part of the Product and subject to the terms and conditions of this EULA. Additional license terms may accompany Updates. By installing, copying, or otherwise using any Update, You agree to be bound by the terms accompanying each such Update. If You do not agree to the additional license terms accompanying such Update, do not install, copy, or otherwise use such Update.
2. PRODUCT TRIAL
2.1. Trial Period. We may make the Product available to You on a trial basis at a duration of Our sole and exclusive choosing. Additional trial terms and conditions may appear on the trial registration web page or may be provided by Us to You. Any such additional terms and conditions are incorporated into this Agreement and are legally binding.
2.2. YOUR TRIAL DATA. ANY DATA YOU ENTER INTO THE PRODUCT, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE THE PRODUCT AS COVERED BY THE TRIAL OR, TO THE EXTENT AVAILABLE WITHIN THE PRODUCT’S NORMAL FUNCTION, EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
2.3. NOTWITHSTANDING THE SECTION BELOW TITLED WARRANTIES AND DISCLAIMERS, DURING THE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. PURCHASED PRODUCT
3.1. Provision of Product. We shall make the Product available to You pursuant to this Agreement. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
4. USE OF THE SERVICES
4.1. Our Responsibilities. We shall: (i) provide to You basic support for the Product at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Product available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 4 hours notice via the Product and which We shall schedule to the extent practicable at lowest usage times (for example, from 6:00 p.m. Pacific time Wednesday to 3:00 a.m. Pacific time Thursday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God or nature, acts of government, flood, fire, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Product only in accordance with applicable laws and government regulations.
4.2. Your Responsibilities. You shall (i) be responsible for Your and Your Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, except to the extent the acquisition of such data is due to the technical functions of the Product, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Product, and notify Us promptly of any such unauthorized access or use, and (iv) use the Product only in accordance with the User Guide and applicable laws and government regulations.
4.3. Usage Limitations. You shall not (a) make the Product available to anyone other than Users, (b) sell, resell, rent or lease the Product without Our prior written consent, (c) use the Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) knowingly use the Product to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Product or third-party data contained therein, (f) use the Product to illegally attempt to access, acquire or otherwise obtain Data to which You are not legally entitled or (g) attempt to gain unauthorized access to the Product or their related systems or networks.
5. THIRD-PARTY PROVIDERS
5.1. Third-Party Products and Services. The Product is designed to exchange information to Third-Party Product and Service providers (primarily for treatment continuity and other treatment and recovery related reasons). .
5.2. Acquisition of Third-Party Products and Services. No purchase of third-party products or services is required to use the Product. Any acquisition by You of third-party products or services, except as may be offered by Us from time to time, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of Data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services.
5.3. Third-Party Applications and Your Data. If You enable Third-Party Applications for use with the Product or the Data provided by the Product, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Product at Your Request. We shall not be responsible for any disclosure, modification or deletion of Your Data outside of the Product resulting from any such use by Third-Party Application providers.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fee Schedule. You will be presented with the currently effective Fee Schedule via the XMD website or in some other manner, such as by the referral of a clinician, therapist or healthcare provider, or via an authorized XMD partner or reseller. The Fee Schedule will set forth the pricing for Your use of the Product. We reserve the right to alter that Fee Schedule at any time, provided that we give You no less than a 30 day notice of the Fee Schedule changes.
6.2. Recurring Fees. You will be charged either an annual or a monthly fee for your use of the Product.
6.3. Payment of Fees. You shall pay all fees for your use of the Product. Except as otherwise specified herein or in the Product, (i) fees are quoted and payable in United States dollars (ii) fees are based on your requests and not on your actual usage or non-usage of the results of any such request and (iii) payment obligations are non-cancelable and fees paid are non-refundable.
6.4. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order, invoicing contact information or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Product requests at the prices listed during Your initial account creation or as changed from time to time as provided herein. Such charges shall be processed at the time You submit each request, or in accordance with any different billing frequency as provided in writing. If You specify that payment will be by a method other than a credit card, We will invoice You at the time You submit each request. Invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Product.
6.5. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future payment terms shorter than those specified above.
6.6. Suspension of Product. If any amount owing by You under this or any other agreement for the Product or Our services is 15 or more days overdue, We may, without limiting Our other rights and remedies, suspend Your access to the Product and any related services provided to You until such amounts are paid in full.
6.7. Payment Disputes. We shall not exercise Our rights herein if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
6.8. Collection Costs. You shall pay all of Our reasonable collection costs, including attorney fees, incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Your payment obligations under this section.
6.9. Taxes. Unless otherwise stated or presented to You at the time of any Per Use or service request order, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, ” Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes based on Our income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Intellectual Property. The Product is protected by copyright, patent and other intellectual property laws and treaties. We or Our suppliers own the title, copyright and other intellectual property rights in the Product. The Product is licensed, not sold.
7.2. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Product, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.3. Restrictions. You shall not (i) permit any third party to access the Product except as permitted herein, (ii) create derivative works based on the Product, (iii) copy, frame or mirror any part or content of the Product, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Product, or (v) access the Product in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Product.
7.4. Limitation on Reverse Engineering, De-compilation and Disassembly. You acknowledge that the Product and its structure, organization and source code contain Our valuable trade secrets. Accordingly, You may not reverse engineer, decompile or disassemble the Product.
7.5. ANY AND ALL TECHNOLOGY WILL NOT BE WORK MADE FOR HIRE. We shall solely retain all Intellectual Property that may be deemed to have been created during or in association with Your use of the Product or any other services provided by Us. We shall remain the sole owner of and retain all rights, title and interest in any service, technical information and/or intellectual property rights provided to You, including without limitation all trademarks, trade names, service marks, copyrights, computer programs, general utility programs, software, methodology, databases (but not Your content contained in databases), specifications, systems designs, applications, enhancements, documentation, manuals, know-how, formulas, hardware, audio/visual equipment, tools, libraries, discoveries, inventions, techniques, writings, designs, course materials, structure and content of the courses as presented to You or other Users, and to any methods, procedures, practices, and software or hardware solutions utilized, and any other intellectual property whether used or developed by Us or Our agents or Affiliates in connection with the Product or services provided by Us (each and all of the foregoing, the “Intellectual Property”).
7.6. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. That is independent of access to Your Data for there may be additionally incurred charges for Your use of the Product or Your access to Your Data as provided herein.
7.7. Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Product and/or Our services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of or in any way to the Product or Our services.
7.8. Transfer. You may permanently transfer or assign all your rights to the Product subject to the terms provided below.
7.9. Consent to Use of Data. You agree that We and Our Affiliates may collect and use technical information You provide as a part of support services related to the Product. We agree not to use this information in a form that personally identifies You.
7.10. Federal Government End Use Provisions. We provide the Product, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Product include only those rights customarily provided to the public as defined in this Agreement. The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
8. CONFIDENTIALITY
8.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data, including any protected health information; Our Confidential Information shall include the Product; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, except for anonymization purposes, (b) disclose Your Data except as authorized by HIPAA, or if compelled by law in accordance with the “Compelled Disclosure” Section below or as expressly permitted by You, or (c) access Your Data except to provide the Product or prevent or address service or technical problems, or at Your request in connection with customer support matters.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. Disclaimer of Warranties. The Limited Warranty referenced below is the only express warranty made to You and is provided in lieu of any other express warranties (if any) created by any marketing, documentation or packaging. Except for the Limited Warranty and to the maximum extent permitted by applicable law, We and Our suppliers and Affiliates provide the Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied, statutory or otherwise, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, or fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support services, to the maximum extent permitted by applicable law. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT.
9.2. Our Warranties. We warrant that (i) the Product shall perform materially in accordance with the User Guide, and (ii) the functionality of the Product will not be materially decreased. For any breach of either such warranty, Your exclusive remedy shall be as provided in the “Termination for Cause” and “Refund or Payment upon Termination” Sections below.
9.3. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not knowingly transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
9.4. Best Efforts in the Processing of Weights and other collected and presented measurements. Best efforts will be made to process all captured data such as weights from check-ins (use of related devices), user inputs and other information collected by the Product. In some cases, collected data such as weight measurements and other inputs may not be calculated to an accepted standard of accuracy or will be available by the system because of communications issues, file type issues, data corruption, encryption or other data related issues (“Exceptions”). In the event that occurs, it is hereby acknowledge by You that such Exceptions may limit the function of the Product.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Product as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
10.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Product in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
10.3. Exclusive Remedy. This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. LIMITATION OF LIABILITIES AND REMEDIES. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT FOR PURCHASED SERVICES” SECTION.
11.2. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES.IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUE OR PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11.3. The foregoing limitations, exclusions, and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until Your account has been terminated. If You elect to use the Product for a trial period and do not purchase the Product before the end of that period, this Agreement will terminate at the end of the trial period.
12.2. Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.3. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any fees for any related services not actually supplied. Upon any termination for cause by Us, You shall pay any unpaid fees covering any use of the Product or related services actually provided prior to the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the use of the Product or services provided prior to the effective date of termination.
12.4. Return of Your Data. Upon request by You made within 90 days after the effective date of the termination of Your use of the Product subscription, and provided that You have fully paid for all requested use of the Product and any related Services, We will make Your Data available to You for download. After such 90-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
12.5. Surviving Provisions. The Sections titled “Fees and Payment for Purchased Product”, “Proprietary Rights”, “Confidentiality”, “Disclaimer”, “Mutual Indemnification”, “Limitation of Liability”, “Refund or Payment upon Termination”, “Return of Your Data”, “Who You Are Contracting With, Notices, Governing Law and Jurisdiction” and “General Provisions” shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1. Unless otherwise provided in this section, any demand, notice or other communication (“Notice”) given by either party to the other shall be in writing and delivered personally, effective on the date of delivery, by overnight delivery via a nationally recognized overnight courier to be effective the day following deposit, or sent by registered or certified mail, postage prepaid, return receipt requested, to be effective three (3) days after deposit.
13.2. All Notices to Us shall be delivered to ExtensionMD, LLC, 3765 Main St., Unit 191 Stone Ridge, NY 12484.
13.3. Notices to You shall be addressed to the User and at the address designated by You in the Product, and in the case of billing-related notices, to the relevant billing contact designated by You.
13.4. We may change the address above by providing Notice of such change of address by U.S. Mail or by sending a notice to you at the email address You have registered with Us. You may change your address at any time in the Product Account Management section.
13.5. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of New York, without regard to the principles of conflict of laws or the United Nations Convention on Contracts for the International Sale of Goods.
13.6. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14. GENERAL PROVISIONS
14.1. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, independent contractor or employment relationship between the parties.
14.2. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Product. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Product in violation of any U.S. export embargo, prohibition or restriction.
14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.4. Changes by Government Action. The parties hereby acknowledge that the Product and any related services may be subject to certain state, federal, or local laws, statutes, acts, ordinances, rules, codes, standards and or regulations. The parties further acknowledge that in the event that the terms set forth in this Agreement are affected or required to be modified from time-to-time by state, or federal, or local laws, statutes, acts, ordinances, rules, codes, standards and or regulations that such modifications shall be incorporated as required without terminating or invalidating this Agreement.
14.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.7. Cumulative Rights. The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either party, whether pursuant to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies.
14.8. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of XMD (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
15. DEFINITIONS
15.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
15.2. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
15.3. “Order Form” means the ordering documents and/or online order forms used for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
15.4. The “Product” means the ExtensionMD service including any devices and the online, web-based applications and platform provided by Us via https://app.ExtensionMD.com and/or other designated websites, that are ordered by You, including associated offline components and services, if any, and any related product or services that You or Your Affiliates purchase under this EULA and/or on the ExtensionMD site. The Product may consist of product documentation, sample applications, books and periodicals, tools and utilities, miscellaneous technical information, development toolkits, server applications and development tools (each, a “Component,” and collectively “Components,” of the Product); the Product may include groups of Components identified as any one or more of the following: Library, Platforms, Server Products, Applications, and Developer Tools. This EULA defines the entire Product and all its Components.
15.5. “User Guide” means the online user guidance (displayed, written, video or otherwise) presented online for the Product, accessible via or downloaded from https://app.ExtensionMD.com or https://www.ExtensionMD.com or any site associated therewith, as updated from time to time. You acknowledge that You have the opportunity to review the User Guide during the use of the Product.
15.6. “Users” means You and persons or entities who are authorized by You to use the Product, who use Your credentials or have been supplied their own user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents or third parties with which You transact business.
15.7. “XMD”, “We,” “Us” or “Our” means ExtensionMD, LLC a Wyoming limited liability company headquartered at 928 Broadway Ste., 904 New York, New York 10010, and its Affiliates.
15.8. “You” or “Your” means both You and, if applicable, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
15.9. “Your Data” means all electronic data (e.g., check-in telemetry) or information submitted by You to the Product.
If you have any questions, please contact Us via email at legal@extensionmd.com.