Third Party Terms Of Use

PRACTICE FUSION, INC TERMS OF USE
Certain content and services you accessed on the Vitals Websites are provided by Practice Fusion, Inc. (“Practice Fusion”). As a condition of your accessing the Practice Fusion services, products or content provided on the Vitals Websites (the “Services”), you agree to be bound by the following terms (“Terms”). By accessing the Services, you are agreeing to these Terms.

1. Services. Practice Fusion grants you a nonexclusive, nontransferable, personal, limited right to use the Services provided that you comply with these Terms. The Services include profile and other information for physicians, healthcare professionals, certified consultants or other professionals (collectively, “Professionals”). Practice Fusion does not evaluate any Professional and the Services do not in any way constitute a recommendation of such Professional. Before obtaining services or treatment from any Professional, you should take the same care you would under any other circumstance, including by confirming licensure and specialty certifications. The Professionals are solely responsible for the appropriateness and quality of the services they provide. The Services may permit you to request an appointment with a Professional. However, Professionals are responsible for maintaining their own schedules, and Practice Fusion cannot ensure that any given Professional will be available, nor that such Professional will not cancel his or her appointment.

2. Communications. As part of providing the Services to you, Practice Fusion may need to provide you with certain communications, such as service announcements and administrative messages. Such communication may be by email, instant message or some other mechanism. You consent to receive such communications from Practice Fusion electronically. You agree that all agreements, notices, authorizations, disclosures and other communications that Practice Fusion provide to you electronically, as well as any acceptances, agreements, consents or authorizations that you provide to Practice Fusion or MDx Medical, Inc. electronically, satisfy any and all legal requirement(s) that such communications be in writing.

3. Ownership. As between you and Practice Fusion, all right, title and interest in and to the Services and the structure, organization and arrangement thereof, are and remain the exclusive property of Practice Fusion and its licensors. Except for the limited specific rights Practice Fusion grants you above, you may not reproduce, modify or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, exploit
or
otherwise use our Services. Practice Fusion reserve all rights not expressly granted to you. This means that if you wish to use the Services in a way that is not authorized above, you must receive Practice Fusion’s permission prior to such use.

4. Violations. Practice Fusion reserves the right to monitor any and all use of the Services, and investigate any activity Practice Fusion suspects violates these Terms, Practice Fusion’s rights or interest, or the rights or interests of any person or entity. Practice Fusion reserves the right, to the fullest extent permitted under law, to cooperate with any governmental authority or third party investigating conduct that may be illegal or harm any individual or entity or violates their respective rights. If, for example, a user threatens to physically harm another user or any other individual, Practice Fusion reserves the right to fully cooperate with law enforcement authorities and the threatened individual. You hereby consent to Practice Fusion’s cooperation in such investigation.

5. Indemnification. You will indemnify, defend and hold harmless Practice Fusion and any of its affiliates, officers, directors, employees, agents, representatives, partners and licensors from and against any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, losses, or expenses, including attorneys’ fees, costs and disbursements, arising out of or in any way connected with your use or access of the Services.

6. Termination. You agree and acknowledge that Practice Fusion, Inc. may suspend or terminate your access to any of the Services, with or without notice or cause, for any or no reason, and without any liability to you. These Terms shall survive any termination of the Services.

7. Disclaimers and Limitations on Liability. ACCESS TO THE SERVICES AND THE INFORMATION AND CONTENT CONTAINED THEREON IS PROVIDED “AS IS” AND “AS AVAILABLE” AND PRACTICE FUSION HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. PRACTICE FUSION DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT BREACHES OF SECURITY AND YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICES OR THE INFORMATION IN THE SERVICES, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. PRACTICE FUSION EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO ANY INJURY CAUSED BY YOU, OR ANY DAMAGE SUFFERED BY YOU, AS A RESULT OF THE ACTIONS OR INACTIONS OF PRACTICE FUSION OR ANY OTHER USER. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING AND ACCESSING THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO IN THESE JURISDICTIONS THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO THE USER.

8. Risks You Assume. WITHOUT LIMITING ANY OF THE OTHER RISKS PRACTICE FUSION HAVE DISCLOSED TO YOU IN THESE TERMS, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES, AND YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE AND ACCESS TO THE SERVICES AND THE INFORMATION AND CONTENT CONTAINED THEREIN, AND ANY SITES LINKED THROUGH THE SERVICES AND ANY DATA TRANSMITTED THROUGH THE SERVICES IS AT YOUR SOLE RISK. ACCORDINGLY, PRACTICE FUSION DOES NOT ASSUME ANY LIABILITY TO YOU FOR OR RELATING TO ANY OF YOUR ACTIONS, INCLUDING YOUR USE OF THE SERVICES, THE PUBLICATION OF ANY CONTENT YOU SUBMIT TO PRACTICE FUSION.

9. Limitation of Liability. IN NO EVENT SHALL PRACTICE FUSION OR ANY OF ITS SUBSIDIARIES OR AFFILIATES, OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS AND LICENSORS (COLLECTIVELY, THE “PRACTICE FUSION ENTITIES”) BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, LOSS OF GOODWILL OR LOSS OF INFORMATION, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF PRACTICE FUSION HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, PRACTICE FUSION’S AGGREGATE LIABILITY IN RESPECT OF ANY CLAIM OR ACTION YOU MAY BRING AGAINST PRACTICE FUSION OR ANY OF THE PRACTICE FUSION ENTITIES, REGARDLESS OF FORM OF ACTION OR THEORY OF LIABILITY, SHALL BE LIMITED TO THE GREATER OF (1) ONE HUNDRED UNITED STATES DOLLARS (US \$100), AND (2) THE AGGREGATE FEES ACTUALLY PAID BY YOU TO PRACTICE FUSION FOR THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO SUCH CLAIM OR ACTION. YOU ACKNOWLEDGE THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE UNKNOWN OR UNSUSPECTED. IN THE CASE OF A JURISDICTION THAT RESTRICTS LIMITATION CLAUSES, THIS LIMITATION SHALL BE APPLIED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE THAT MAY NOT BE LAWFULLY TERMINATED.

10. Disputes; Governing Law; Jurisdiction. The interpretation of these Terms and the resolution of any disputes arising under these Terms shall be governed by the laws of the State of California, without regard to its conflict of laws provisions. These Terms shall not be governed by the United Nations Convention on Contract for the International Sale of Goods, the application of which is expressly disclaimed. If any action or other proceeding is brought on or in connection with these Terms, you agree to submit to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco in the State of California, and agree not to bring any of action relating to the use of the Services or to these of these Terms in any court in any jurisdiction other than the state or federal courts located in the county of San Francisco, State of California. Practice Fusion shall have the right to commence and prosecute any legal or equitable action or proceeding before any US or non-US court of competent jurisdiction to enforce these Terms or to protect Practice Fusion or any third party’s rights in the Services or any data, information or other content made available via the Services. You hereby waive any right to a jury trial. You also agree that Practice Fusion may bring suit in court to enjoin any violation of these Terms without the posting of a bond or security, in addition to whatever remedies Practice Fusion might have at law. In any dispute between you and Practice Fusion where Practice Fusion prevail, Practice Fusion shall be entitled to recover reasonable attorney fees, court costs, disbursements, and other legal expenses.