This Platform Subscription Agreement (the“Agreement”) is entered into by and between Digitalcare100 Inc. (“Provider”), and the individual ordering a subscription to access Provider’s platform further described below(“Subscriber”). Provider and Subscriber are each individually a “Party” and collectively the “Parties”. By using the Services (as hereafter defined), Subscriber agrees to all terms and conditions set forth herein as of the date of commencement of such use of the Service (the “Effective Date”).
WHEREAS, Provider provides a proprietary subscription-based platform that includes content, data, communications tools, software and technology to help individuals effectively communicate digitally with their patients and clients (the “Service”);
WHEREAS, Subscriber desires to make use of the Service in furtherance of Subscriber’s business;
NOW, THEREFORE, In consideration of the mutual covenants and agreements set forth in this Agreement, the Parties hereby agree as follows:
Ordering. Subscriber may purchase a subscription to the Service (“Subscription”) by placing an order with Provider. By purchasing a Subscription, Subscriber agrees to pay Provider the amount shown on the sign up/enrollment form and/or Provider-provided invoice (if applicable) (the “Fees”) in accordance with the terms set forth on the sign up/enrollment form and/or Provider-provided invoice. All Subscriptions shall be governed by the terms and conditions set forth in this Agreement. Provider objects to and will not be bound by any terms that are provided by Subscriber and are different from or inconsistent with the terms or conditions contained in the Agreement, including any purchase order submitted by Subscriber.
Subscription Period. Unless otherwise agreed in writing, the period of Subscriber’s access to the Service will be one (1) month (“Initial Subscription Period”). For Initial Subscription Periods of one (1) month, the Subscription will automatically renew for successive one (1) month terms, unless Subscriber provides written notice to Provider of non-renewal prior to the expiration of then-current Subscription Period (each, a “Renewal Subscription Period”). The Initial Subscription Period and each Renewal Subscription Period are collectively the “Subscription Period”. A Subscription may be canceled by Subscriber effective upon prior written notice during any Subscription Period by contacting Provider as set forth in the Service or on Provider’s platform. In the event of early termination by Subscriber, all remaining Fees for the then-current Subscription Period shall become immediately due and payable. BY PURCHASING A SUBSCRIPTION, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION PERIOD, AND SUBSCRIBER’S PAYMENT METHOD WILL AUTOMATICALLY BE CHARGED ON A RECURRING BASIS UNTIL THE SUBSCRIPTION IS CANCELLED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
Service License. Subject to the terms and conditions set forth in this Agreement, upon timely receipt of Subscriber’s payment of the Fee for a Subscription to the Service, Provider shall grant to Subscriber a revocable, limited, non-transferable, non-assignable, non-exclusive right to access the Service in and for use in the United States only during the Subscription Period for Subscriber’s internal business purposes. The foregoing license shall terminate automatically upon cancellation of the Subscription. Provider shall have no obligation to provide any services not specifically set forth herein.
Additional Users; Unauthorized Use.Access to the Service is personal to Subscriber and may not be assigned to, transferred to, or shared with any other agent, representative, nurse, physician, assistant, or other individual. Subscriber will be provided with login credentials to access the Service. Subscriber shall not share such credentials with any other individual. Subscriber shall protect its credentials and take full responsibility for Subscriber’s own, as well as any third party’s, use of the Subscriber’s account. Subscriber is solely responsible for any and all activities that occur under its accounts, except for any activities performed by Provider. Subscriber agrees to notify Provider immediately upon learning of any unauthorized use of its account or any other breach of security.
Digitalcare100 Library. Included in Subscriber’s license to access the Service is access to the digi ~~ talcare100 library (“Library”), an archive of certain content relating to a variety of topics. Subject to the Service license grant above, Subscriber may modify, copy, display, republish, and creative derivative works based on materials from the Library; provided that Subscriber shall remain fully and solely responsible and liable for any such modifications or derivative works created. Subscriber’s license to access content and materials from the Library shall terminate automatically upon cancellation or termination of the Subscription, and Provider may not download or archive any such materials or content for use following the Subscription Period.
Digitalcare100 Studio. Included in Subscriber’s license to access the Service is access to the digitalcare100 studio, where Subscriber may create videos, messages, and other content (“Studio Content”) for Subscriber’s clients (the “Studio”). Subscriber shall remain fully and solely responsible and liable for all Studio Content. Subscriber may save and store Studio Content within the Service, up to a maximum storage amount as provided in the Service or other written communication from Provider. Notwithstanding the foregoing, Provider is not responsible for the safeguarding of Studio Content and shall not be responsible for the destruction, deletion, corruption, or damage of any Studio Content stored on the Service. Subscriber’s license to access the Studio and Studio Content shall terminate automatically upon cancellation of the Subscription, and the Subscriber Landing Page may be disabled, removed, blocked, or otherwise removed upon cancellation or termination of the Subscription.
Optimization. The Service does not include Subscriber’s connection to the Internet or any equipment or third party licenses necessary for Subscriber to use or access the Service, which shall be Subscriber’s sole responsibility. Provider reserves the right to manage bandwidth or route traffic across the Internet in a commercially optimal way, provided such actions do not compromise Provider’s obligations under this Agreement.
Use Restrictions. Subscriber shall not, and shall not allow any third party to, directly or indirectly:
Right to Suspend Service. Provider reserves the right to suspend or disable Subscriber’s access to the Service at any time, with or without notice, including, without limitation if Provider believes such suspension is necessary to prevent unauthorized use of the Service or to prevent an ongoing violation of any applicable laws or regulations. In addition, if Subscriber fails to timely pay any Fees in accordance with the terms of this Agreement, Provider may, without limitation to any of its other rights or remedies, suspend access to the Service until Provider receives all amounts due.
Feedback.Provider shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber relating to the Service ( “Suggestions”).
Fees. Subscriber will pay Provider the Fees specified during the Subscription purchase process. If Subscriber orders additional products or services, the fees for such additional products or services will be charged at the then-current pricing for such additional products or services and will commence on the applicable purchase or order date therefor. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
Refunds. In the event of cancellation of a Subscription, Subscriber is not entitled to any refunds or credits for partial month of access to the Service or for any Subscription downgrades.
Payment Terms. Subscriber will pay all amounts due for the Initial Subscription Period at the time of purchase unless otherwise indicated on the sign up/enrollment form or Proivder-provided invoice (if any). As described in Section 1(b), Subscriptions will automatically renew until Subscriber cancels the Subscription. Fees for each Renewal Subscription Period will be automatically charged to Subscriber’s payment method. SUBSCRIBER REPRESENTS AND WARRANTS THAT SUBSCRIBER HAS THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION HEREUNDER. By submitting such information, Subscriber grants Provider or any the third party collecting that information on Provider’s behalf the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by Subscriber. Verification of information may be required prior to the acknowledgment or completion of any transaction.
Taxes. Other than net income taxes imposed on Provider, Subscriber will bear all taxes, duties, and other governmental charges (“Taxes”) resulting from Subscriber’s purchase or use of the Service.
Provider retains all rights, title, and interest in and to all technology, content, information, manuals, descriptions, and data associated with or made available through the Service, in addition to the design, format, and processing of the Service and any related databases, programs, protocols, displays, and manuals relating to the Service (including any modification, addition, or improvement thereto). For the avoidance of doubt, Provider’s name and logos are owned by Provider and are protected as Provider’s intellectual property.
Subject to Subscriber’s compliance with the terms of this Agreement, Provider grants to Subscriber a perpetual, non-exclusive, worldwide right and license to use, transmit, display, distribute, and make copies of the Studio Content in accordance with the terms hereof.
As between the Parties, Subscriber retains all rights, title, and interest in and to any data or information submitted to the Service by or on behalf of Subscriber (“Subscriber Data”), excluding any aggregated or anonymized data derived therefrom. Notwithstanding anything to the contrary herein (though, if Provider and Subscriber have entered into a BAA as hereafter defined, then subject to the terms thereof), Provider shall have the right to use aggregated and/or anonymized data for any business purpose during or after the Term of this Agreement; this includes, without limitation, the right to use Subscriber Data in the aggregate and with other data and to create derivative datasets for use in Provider’s products and services. Subscriber further agrees that Provider and those authorized by Provider shall have the right to use, monitor and analyze Subscriber Data (in whole or in part) to improve the Service.
Provider shall use commercially reasonable measures to maintain the security and integrity of the Subscriber Data and to provide physical, technical, and organizational safeguards against accidental, unlawful or unauthorized access to or use of, destruction, transfer, disclosure or alteration of Subscriber Data. Subscriber has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data. If Subscriber is a Covered Entity or Business Associate as defined in the Health Insurance Portability and Accountability Act, upon Subscriber’s written request, Subscriber and Provider agree to the terms of Provider’s Standard Business Associate Agreement (currently available upon request) which may be amended from time to time (the “~BAA~”). Provider takes no responsibility and assumes no liability for any Subscriber Data other than its express obligations set forth in this section.
By Subscriber. Subscriber represents and warrants that: (i) Subscriber is at least 18 years of age and a United States resident; (ii) it has the full legal power and authority to enter into this Agreement; and (iii) it will comply with all applicable laws, rules, regulations, and industry or medical practice area self-regulatory or ethics guidelines related to its performance of this Agreement, including, without limitation, the CAN-SPAM Act, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, and the Health Insurance Portability and Accountability Act.Subscriber further represents and warrants that: (a) it has obtained all authorizations and/or consents legally required to send or transmit (via email, SMS message, telephone, print mailing, or otherwise) any Studio Content, Library materials, or other messages, content, or materials to any end-users, patients, or other third-parties through or in relation to the Service; (b) it will not send or transmit any Studio Content, Library materials, or other messages, content, or materials to any country outside of the United States; (c) no Studio Content or any Subscriber modifications to Library materials will infringe or violate any rights of any third party; and (d) it has obtained all authorizations or consents as legally required to upload to the Service or otherwise disclose to Provider any Subscriber Data consisting of information related to or provided by end-users, patients, prospective patients, or other individuals. Subscriber further warrants that Subscriber will not use the Service to send any messages that constitute advertising or telemarketing and that Subscriber’s use of the Service will not infringe or violate the rights of any third party.
By Provider. Provider represents and warrants that it will undertake to provide the Service in a good and workmanlike manner.
Disclaimer of Warranties.EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL PRODUCTS AND SERVICES PROVIDED BY PROVIDER (INCLUDING THE SERVICE) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, PROVIDER EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. PROVIDER ALSO MAKES NO WARRANTY REGARDING ACCESSIBILITY OR NON-INTERRUPTION OF USE OF THE SERVICE, AND MAKES NO WARRANTY THAT PRODUCTS WILL BE ERROR-FREE.
Exception to Implied Warranty Disclaimers. Some states do not allow the exclusion of implied warranties, which means that some of the above limitations may not apply. IN THESE STATES, PROVIDER’S IMPLIED WARRANTIES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Subscriber will indemnify, defend, and hold harmless Provider and its officers, directors, employees, agents, and contractors from and against any claim brought by a third party arising from or related to Subscriber’s violation or alleged violation of the terms of this Agreement, including, without limitation, Subscriber’s representations and warranties made hereunder. If Provider is obligated to respond to a third-party subpoena, government or regulatory investigation, or other compulsory legal order or process related to Subscriber’s use of the Service, Subscriber will reimburse Provider for reasonable legal fees, as well as Provider’s employees’ and contractors’ time and materials spent responding to such demand or request.
Disclaimer of Indirect Damages. PROVIDER WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF PROVIDER IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY SUBSCRIBER TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Exception to Limitations of Liability. Some states do not allow the limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE STATES, PROVIDER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Term and Termination
Term.This Agreement shall commence upon the Effective Date and shall remain in full force and effect until terminated by either Party as set forth herein (“Term”). Subscriptions shall renew automatically upon the expiration of the Initial Subscription Period or then-current Renewal Subscription Period.
Termination by Provider.Provider may cancel Subscriber’s Subscription for any reason or no reason upon thirty (30) days’ prior written notice, which will have the effect of terminating this Agreement. In addition to the foregoing, Provider may suspend Subscriber’s access to the Service pursuant to Section 2(g).
Effect of Termination.Effective immediately upon termination or cancellation of this Agreement or any Subscription, Subscriber shall be prohibited from accessing or using the Service.
Amendments. Provider may update or modify this Agreement (including referenced policies and other documents) from time to time by posting a revised version on digitalcare100.com or by notification via the email address associated with Subscriber’s account. The modified terms will become effective upon posting or notification and continued use of the Service, following the update, shall constitute acceptance of the updated Agreement. If Subscriber does not agree to the updated Agreement after it takes effect, Subscriber will no longer have the right to use the Service. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion).
Force Majeure.Neither Party shall be liable for any default or delay in the performance of its obligations hereunder (except for failure to pay amounts due) if and to the extent that such default or delay arises out of causes beyond its reasonable control, including without limitation acts of God, acts of war, acts of terrorism, earthquakes, fires, cable cuts, power outages, catastrophic network element failures, floods, terrorism, riots, civil disorders, rebellions, strikes, lockouts and labor disputes.
Independent Contractors.The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
Assignment.Subscriber may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Provider. Any attempt by Subscriber to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
No Third-Party Beneficiaries. Except as specifically stated in this Agreement, this Agreement is not intended to be for the benefit of any third party, is not enforceable by any third party, and will not confer on any third party any remedy, claim, right of action or other right.
Governing Law and Jurisdiction.This Agreement shall be governed by and interpreted according to the laws of the State of Georgia, without regard to its conflict of law principles, and the Parties hereby consent to the exclusive jurisdiction of the state or federal courts in the State of Georgia to adjudicate any dispute arising under or in connection with this Agreement.
Waiver.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.
Severability.If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Service will immediately terminate.
Entire Agreement.This Agreement is the final and complete expression of the agreement between the Parties regarding Subscriber’s use of the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of each Party.