™MagendaMD (app.magendamd.com), a corporation organized under the laws of the State of New York and its Affiliates (the "Company", "us", or "we"), provides certain software for browsing, searching, data storage and delivering information, reports, billing, collections and other content and services (the "Service" or "Services") to the user ("You", "Your" or "Customer") through a software application, a Website and/or any other browsers or software platforms related to medical/healthcare billing, collection, data processing, and other related transactions and services that use or incorporate our software or Website (collectively, the "Application"), subject to Your compliance with these Terms and Conditions of Use ("Terms").
1. Acceptance of Terms
We reserve the right to change these Terms and Conditions from time to time, with or without notice to You. You acknowledge and agree that it is Your responsibility to periodically review these Terms. Your continued use of the Application and Service after such modifications will constitute acknowledgement and acceptance of the modified Terms.
As used in these Terms, references to our "Affiliates" include our owners, licensees, assigns, subsidiaries, affiliated companies, officers, directors, suppliers, partners, sponsors, and includes (without limitation) all parties involved in creating, producing, and/or delivering the Service and/or contents available through the Application.
BY USING THE APPLICATION AND THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, PLEASE EXIT THE APPLICATION. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS APPLICATION, PRODUCTS, OR SERVICE, OR THESE TERMS IS TO CEASE USING THE APPLICATION AND/OR THOSE PARTICULAR PRODUCTS OR SERVICE.
2. Services, Licenses
Limited License from Company
Subject to these Terms, the Company hereby grants to You a personal, nontransferable, and nonexclusive license to install (if installation of any software or plug-in is required) and use the Application in the Territory using Your smart phone, mobile device, server, desktop or laptop computer for your own (i.e., your or your company) use only, and not to offer or use the Services or Application for any business purposes for other third parties without first obtaining express permission from us. The "Territory" is limited to the geographic territory of the United States of America.
License Fees
License fees will be set up and paid pursuant to a separate agreement with each user, the User Agreement/Terms and Conditions of Use - User, which is incorporated herein.
User Equipment
You are solely responsible for providing, at Your own expense, all equipment necessary to use the services, including a smart phone or other mobile device, a desktop or laptop computer, and Your own Internet access.
Access Outside the Territory
Although this Application may be accessible outside the Territory, we make no representation that materials on this Application are appropriate or available for use in locations outside the Territory. Those who choose to access this Application from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws in their jurisdiction.
Company and User Content
"Company Content" is any software, data, information, website, communications, photos, video, graphics, music, sounds, or other material that can be viewed by users on our Application and is owned by Company or its Affiliates. "User Content" is the data, information, software, photographs, videos, or other personal information or content that the user uploads or stores on the company server. All Company Content is protected by intellectual property and other proprietary rights and is the sole property of Company or its Affiliates. Company acknowledges that User Content is owned or licensed by the user and is not owned by the Company. Except for a personal-use copy, You may not copy, reproduce, modify, republish, upload, post, transmit, distribute, or reverse engineer any Company Content without prior written permission. You grant the Company a limited license to make copies, reproduce and store the User Content on the server(s) used or operated by or for the Company as part of the operation and use of the Application.
Support
We offer to provide support for the software offered through our Application and Services pursuant to a separate Support Agreement. If you encounter any problems with the Application or Services, you shall inform us and provide sufficient information to resolve the problem in a reasonable time.
3. Privacy and Security
Login Required
In order to access the Service, You may be asked to set up an account and password. Our registration page may request certain personal information ("Registration Information"). By registering, You agree that all information provided is true and accurate and that You will maintain and update it as required to keep it current, complete, and accurate.
Passwords and Security
You are responsible for maintaining the security and confidentiality of Your password, and are fully responsible for all activities carried out under Your account. If you authorize any other person to access Your account, you assume all associated risks, and the Company shall not be responsible for such unauthorized access.
4. Services, Acknowledgements and Requirements
The Company shall provide services described in the Application and subject to subscription by You. You expressly acknowledge that the Company is neither a licensed health care provider nor an underwriter of health benefits, and cannot and does not guarantee payment for any professional service performed by You for others. The Company will not maintain or be responsible for the loss, damage or destruction of any original medical records.
You shall provide a listing of all facilities and/or office locations in current operation, including names, locations, tax identification numbers, and all health care provider identification numbers for individuals providing professional services on Your behalf. If You terminate operations at any facility, You must provide written notice of the termination date at least thirty (30) days prior. Requirements for billing, collection and other services are set forth in a separate User Agreement, incorporated by reference herein.
5. Confidential Information and HIPAA Requirements
HIPAA
In compliance with the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and the regulations promulgated thereafter, this Agreement stipulates the permitted uses of confidential health information by the Company.
Confidential Information
"Confidential Information" means any data or information, in tangible or intangible form, however disclosed, including information concerning the other party's patients, business strategies, financial data, operations, plans for products or services, customer/supplier lists, trade secrets, source code, and any other information identified as confidential or that should reasonably be recognized as confidential.
Protection of Confidential Information
Each Receiving Party agrees to use reasonable due diligence and best efforts to protect the Confidential Information of the Disclosing Party, and shall not disclose, publish, reveal or use it other than as expressly permitted, nor use it as a basis to develop a competing product or service.
Exceptions
The foregoing obligations do not apply to information that the Recipient demonstrates: (i) became publicly available other than through an unauthorized disclosure; (ii) was independently developed or available on a non-confidential basis prior to disclosure; (iii) to the extent necessary to fulfill the intent of this Agreement; (iv) per applicable regulations or regulatory authorities; or (v) was legally compelled to be disclosed, provided the Recipient gives prompt notice and reasonable assistance to the Disclosing Party.
PHI
Because the Company may receive individually identifiable protected health information ("PHI") from You, the Company shall at all times maintain the security and confidentiality of all PHI in compliance with HIPAA and applicable laws, and shall not use or further disclose PHI other than as expressly permitted by this Agreement or allowed by law. The Company shall not disclose PHI to third parties, workforce members, or independent contractors except under the confidentiality obligations described herein, shall use appropriate safeguards to prevent improper use or disclosure, shall report any unauthorized use or disclosure, and shall make relevant records available to the U.S. Department of Health and Human Services ("DHHS") if required by law. Confidentiality obligations survive termination of this Agreement.
Non-Compete and Non-Circumvent
Recipient shall not develop, make, or market any products or services in competition with the Disclosing Party during the term and for three (3) years after termination, and both parties agree not to circumvent the terms of this Agreement. Nothing herein limits the Company's ability to offer its Application or Service to any third party, including a competitor of You.
6. Disclaimers and Warranties
ALL CONTENT AND OFFERINGS ON THIS APPLICATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT RESULTS WILL BE ACCURATE OR RELIABLE.
We do not warrant that Your use of materials will not infringe the rights of third parties, but we guarantee we will not place malicious or disabling software on Your device. Any transactions with third parties through the Application are conducted entirely at Your own risk and solely between You and the third party. The downloading or acquisition of any products or Content is done at Your own discretion and risk. You warrant that any User Content you provide does not violate third-party rights or applicable laws. We cannot promise or guarantee specific results, and temporary interruptions of the Service may occur as normal events outside our control.
7. Indemnification and Limitations on Damages
IN NO EVENT SHALL WE OR OUR AFFILIATES, OFFICERS OR MANAGEMENT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA OR PROFIT. NEITHER PARTY SHALL BE ENTITLED TO DAMAGES THAT EXCEED THE COST OF SERVICES FOR THE FULL YEAR OR THE ACTUAL AMOUNT PAID IN THE PRIOR YEAR.
Some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, so the above limitations may not apply to You. You agree to defend, indemnify and hold the Company and its Affiliates, management and officers harmless from any and all claims, demands, suits, liabilities, judgments, losses, damages, expenses and costs (including reasonable attorneys' fees) arising out of: (i) Your failure to comply with these Terms; (ii) Your breach of Your obligations; (iii) Your use of the rights granted hereunder; and/or (iv) Your violation of any third-party right or any law or regulation.
8. Term and Termination
The initial term commences on the Effective Date and renews automatically for successive one (1) year terms unless either party gives written notice of its intention to terminate no later than ninety (90) days prior to the expiration of the then-current term. After expiration, the Company will have an additional ninety (90) days to collect on outstanding claims or patient balances. If either party breaches its obligations, the other party may terminate without penalty after written notice if the breach is not cured within thirty (30) days. We may, upon written notice, terminate or suspend Your access "for cause," including breach of these Terms, and any suspected fraudulent, abusive, or illegal activity may be grounds for immediate barring of access. We reserve the sole right to modify the Application, including any Service or features, at any time with or without notice.
9. Force Majeure
We shall be excused from liability for non-delivery or delay arising from any event beyond our reasonable control, including labor disturbance, war, fire, epidemic, accident, computer viruses or malware, Internet disturbances, adverse weather, inability to secure transportation, or governmental act or regulation. The Company will make reasonable, commercially practicable efforts to restore operations and/or back up data within a reasonable time. If restoration is not feasible, the only remedy shall be termination of services and a pro rata refund of any fees for the remainder of the term.
10. Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of New York, without reference to conflict of laws principles. Any controversy or claim shall, on written request, be brought exclusively before the American Arbitration Association for Commercial Disputes, limited to not more than three (3) days of proceedings unless the parties stipulate otherwise. Attorneys' fees and costs of arbitration shall be borne by the losing party or as the arbitrator decides. The parties acknowledge that monetary damages may not be sufficient for unauthorized use of the Application or Software, and the aggrieved party may seek injunctive or equitable relief.
11. General Provisions
The parties are independent contractors; no employment, partnership or agency relationship is formed. You agree not to sell, resell, reproduce, duplicate, distribute, or use for commercial purposes any portion of the Application beyond the limited rights granted. You agree not to reverse-engineer the Application or Services to compete with the Company for two (2) years after termination. This Agreement may not be transferred or assigned without prior written consent, except as expressly permitted. If any part of these Terms is held invalid, the remaining portions remain in full force and effect. Any failure by us to enforce a provision shall not constitute a waiver. These Terms constitute the entire agreement and supersede all prior agreements regarding the subject matter.
Notices
You may direct any questions, complaints, or claims with respect to the Application or Services to: magendamd@gmail.com
No Third Party Rights
This Agreement does not create any rights in any third parties, except assigns, successors, heirs, or as otherwise expressly permitted herein.