Access and Use: Provided that You are bound by this Agreement, You may access and use the Bagel Health Service through the Site during the Service Term (as defined below) solely for your internal business purposes, including in connection with providing medical services to your patients, members, employees and/or customers (“Members”), subject to the terms and conditions of this Agreement and all applicable local, state, national and international laws, rules and regulations.
Restrictions and Limitations: Your right to access and use the Bagel Health Service is nonexclusive, nontransferable, nonsublicenseable, and fully revocable. You shall have no right to, and shall not, reverse engineer, decompile, copy, modify or create derivative works of or based on, sell, resell, display, distribute, disseminate, rent or lease the Bagel Health Service or Site or any part thereof. Notwithstanding the foregoing, You may copy, print and use reports generated by the Bagel Health Service in accordance with the standard functionality of the Bagel Health Service. Access to and use of the Bagel Health Service is subject to the applicable terms and conditions of any agreement between Company and any third party regarding software or data from such third party that is contained within the Bagel Health Service.
Reservation of Rights: Subject to the rights expressly granted hereunder, Company and its licensors retain all right, title and interest in and to the Bagel Health Service and the Site (including all information, content, software and other materials therein, excluding User Data) and in and to all of Company’s other intellectual property rights. No intellectual property or other rights or licenses are granted or otherwise provided by Company under this Agreement, by implication, estoppel or otherwise, beyond those expressly provided for herein. No software or copies thereof are sold, transferred, distributed, or licensed hereunder; instead only the limited right to access and use the Bagel Health Service, as expressly provided for in this Agreement, is granted hereunder.
User Accounts: When You sign up or register with Company for use of the Bagel Health Service, You agree that all information provided to Company relating to You will be true, accurate, current and complete. You agree to promptly update all such information whenever any of it changes. You are entirely responsible for maintaining the confidentiality of your account information and password. You agree not to
use the account, username, or password of another individual or entity when using the Bagel Health Service, or
disclose your password to, or share your account with, any third party or allow or authorize any third party to use your account or user ID with Company.
You agree to notify Company immediately if You suspect any unauthorized use of your account or access to your password or account. You are solely responsible for any and all use of your account.
User Data: All data, information, communications, text, files, photographs, graphics, video, messages or other materials or content, uploaded, submitted, posted or otherwise provided to the Bagel Health Service (and/or the Site) by or for You, including without limitation data relating to your Members and their interactions with You (collectively, “User Data”), shall be subject to this Agreement. You hereby confirm, represent and warrant that You have the full right and authority to provide the User Data to the Bagel Health Service (and Site), to store, analyze and otherwise use such User Data in the Bagel Health Service, and to grant Company the rights in such User Data set forth herein, without violating the intellectual property, privacy or other rights of any individuals or entities and without violating any applicable laws, rules or regulations. Under no circumstances will Company be liable in any way for any User Data, including any errors or omissions in any User Data, any modification, loss or deletion of any User Data or any or any loss or damage of any kind incurred as a result of the use of or reliance upon any User Data or the analysis thereof to the extent any loss, errors, damage, modifications, omissions, or deletion of User Data do not arise out of Company’s gross negligence or willful misconduct. Company warrants that no Protected Health Information (PHI) shall be stored, transmitted, or otherwise moved outside of the United States at any time, excluding any use by You of the Bagel Health Service from outside of the United States and excluding in connection with any administrative, customer support and similar use of the Bagel Health Service (or its backend systems) by Company or its personnel or third party service providers and contractors from outside the United States.
to operate, maintain and administer the Bagel Health Service,
to develop, modify, use and improve the Bagel Health Service and related products and services, and
to publish aggregated and anonymized data, statistics and trend information.
You, or your Members and third party licensors, as applicable, retain any intellectual property rights in the User Data You, subject to the foregoing license.
Fees and Payment Terms
Service and Usage Fees: Company may offer the Bagel Health Service, or certain features or functionality thereof, free of charge. Company may also choose at any time to charge one or more fees (“Fees”) for use of the Bagel Health Service or for certain features or functionality thereof, in its sole discretion, by indicating such Fees on the Site or in other applicable order documentation or notices when You first sign up for the Bagel Health Service or otherwise in applicable notifications to you before such Fees are imposed (any such postings, notices or documentation being an “Order”). You agree to pay to Company any Fees imposed with respect to your use of the Bagel Health Service, if any, in accordance with the applicable Order. All Fee payment obligations are non-cancelable and all Fees paid are non-refundable and non-creditable. Company may change any or all of its Fees hereunder (or impose new Fees) upon posting such changed or new Fees within or in connection with the Bagel Health Service. Such Fees shall automatically go into effect upon their posting (and become the Fees payable hereunder), unless and until You terminate this Agreement and your use and access to the Bagel Health Service prior to such time in accordance with the termination provisions below. Your continued use of the Bagel Health Service after the posting of changed or new fees shall constitute your acceptance of such change.
Payment Terms: You shall pay all other Fees at the times specified in the Order or, if not so specified, within thirty (30) days of Company’s invoice with respect to any such Fees. All Fees are payable in United State dollars by the form of payment indicated on the service order, which You may be asked to provide upon sign-up or registration for the Bagel Health Service, unless the Order states otherwise. You agree to keep the credit card (or other charge account) information you submitted to Company accurate and up to date. Any Fees that are not received from You by the due date therefor will accrue 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 is due until the date paid.
Taxes: You are responsible for paying (and all Fees are exclusive of) any taxes, levies, duties or similar governmental assessments of any nature associated with your use of or access to the Bagel Health Service or the payment of Fees under this Agreement (other than taxes on Company’s net income). If Company has the legal obligation to pay or collect taxes, levies, duties or similar assessments for which You are responsible hereunder, Company may add the appropriate amount to amounts charged to and paid by You hereunder.
Term, Termination, and Modification of Agreement
Service Term: The term of your Bagel Health Service (the “Service Term”) shall commence on the date You accept this Agreement through selection or clicking and shall terminate upon the designated termination date, or at the end of the designated period of time indicated for such term, in the Order (if any), or, if earlier, upon the effective date of termination of such Bagel Health Service as specified below.
Termination By User: You may terminate your Bagel Health Service at any time for any reason (or no reason) upon thirty (30) days prior written notice to Company, which termination shall become effective upon the end of such thirty-day notice period, unless You have a paid subscription, in which case such termination shall occur at the end of any then-current periodic subscription period as specified in the Order or, if not so specified, the end of the next full periodic subscription period (and You shall remain obligated to pay any Fees, including periodic subscription fees, that become due during such thirty-day, or longer, period). After receipt of your termination notice, Company will terminate your Bagel Health Service account upon the effective date of termination. Termination of your Bagel Health Service shall not relieve You of any obligation that has accrued or existed prior to termination or any obligation to pay any accrued Fees.
Termination By Company: Company may terminate your Bagel Health Service at any time for any reason (or no reason) upon thirty (30) days prior written notice to You, which termination shall become effective upon the end of such thirty-day notice period, unless You have a paid periodic subscription to the Bagel Health Service, in which case such termination shall become effective upon the later to occur of
the end of such thirty-day notice period, or
the end of any then-current periodic subscription period as specified in the Order or,
if not so specified, the end of the next full monthly subscription period (and You shall remain obligated to pay any Fees, including periodic subscription fees, that become due during such thirty (30) day, or longer, period).
Furthermore, and without limiting any other remedies, Company may terminate your Bagel Health Service in the event that You breach this Agreement (including upon any failure to pay Fees when due) upon fifteen (15) days notice, unless You have cured such breach before the end of such fifteen day period. Company reserves the right to immediately suspend your access to and use of the Bagel Health Service in the event of any breach of this Agreement which threatens immediate harm to the Bagel Health Service or in the event of any violation of law, a serious security issue or other emergency situation. In the event of any termination by Company, Company will terminate your Bagel Health Service account upon the effective date of termination. Termination of your service shall not relieve You of any obligation that has accrued or existed prior to termination, nor of any obligation to pay any accrued Fees.
Effect of Termination: Upon any termination of your Bagel Health Service by You or Company, You understand and acknowledge that Company will have no further obligation to provide the Bagel Health Service or access thereto nor any obligation to refund, return or credit any amounts paid or payable to Company. Upon termination, all licenses and other rights granted to You by this Agreement will immediately cease and You shall cease using and cease accessing the Bagel Health Service. Company is not liable to You or any third party for termination of the Bagel Health Service or termination of your use of the Bagel Health Service or the Site.
User Data. You are encouraged to retain copies of all your User Data; however, for a period of sixty (60) days after the effective date of termination, Company will make the User Data contained in the Bagel Health Service as of such termination date available to You upon written request prior to the end of such sixty day period. Except as expressly provided in the previous sentence (or as required by hipaa or other applicable laws), upon any termination, any user data that you have submitted, posted, uploaded or otherwise provided to the Bagel Health Service may no longer be accessed by you and, upon written request, will be destroyed or returned unless Company is legally obligated to maintain such User Data or destruction/return is not feasible. If Company cannot return or destroy all data, it shall provide you a written explanation detailing why destruction or return is not feasible. Furthermore, except as may be required by applicable law, Company will have no obligation to (but may in its sole discretion) store or maintain any User Data or other information stored in the Bagel Health Service or any other database related to your account or to forward any information to You or any third party.
Agreement Terms. Upon any termination of your Bagel Health Service, Sections 1.3, 1.4, 2.3, 4.4 and 5 through 8 of this Agreement shall survive and remain in full force and effect. Furthermore, any of your obligations to Company under this Agreement which have accrued prior to such termination, and Section 3 with respect to any Fees due or payable prior to termination, shall survive such termination and remain in full force and effect. All other provisions of this agreement shall terminate upon such termination of your Bagel Health Service and shall thereupon be of no force or effect.
Disclaimer of Warranties and Member Responsibility
You Are Solely Responsible for Your Members: You are solely responsible and liable for your Members and their use of the Bagel Health Service and Company hereby disclaims responsibility or liability with respect thereto. Without limiting the foregoing, You are responsible for any support, training and communication with and for your Members with respect to the Bagel Health Service. You are also responsible for ensuring Your Members comply with the applicable terms and conditions of this Agreement with respect to their use of the Service and any breach by such Members of such terms and conditions shall be deemed a breach by You hereof.
Information Provided on an “As Is” Basis; Assumption of Risk: You acknowledge that you are fully assuming the risks arising from the use of any data, articles, publications, content, materials, reports, analyses and other information generated by, available on, or otherwise provided through the Bagel Health Service or the Site, whether or not originating from third party sources (collectively, “Bagel Health Service Content”). Such risks shall include, but are not limited to, erroneous, inaccurate or invalid results or information, omissions, misrepresentations, and similar issues. You agree that Company shall not be liable or responsible for any damages, liabilities, costs, harms, business disruptions or expenditures of any kind that may arise from or in connection with your use or application of any Bagel Health Service Content. All Bagel Health Service Content is provided for your convenience only on an “as is” basis without warranty of any kind. Company does not warrant, guarantee, endorse, support, represent, verify or otherwise have any responsibility for the completeness, truthfulness, accuracy or reliability of any Bagel Health Service Content. All use of and reliance upon any such information shall be solely your responsibility and at your risk. Without limiting the foregoing, no analyses, reports or other information obtained or provided through the Bagel Health Service or the Site are intended to be (nor should be relied upon as) medical advice or instructions for medical diagnosis or treatment. The Bagel Health Service and Site may contain links to third party websites or resources. You acknowledge and agree that we are not responsible or liable for the availability or accuracy of such websites or resources or the content, products or services on or available therefrom. Links to such websites and resources do not imply any endorsement by Company thereof or the content, products or services thereon. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Disclaimer of Warranties. You expressly understand and agree that: Your use of the Bagel Health Service, site, Bagel Health Service content and user data is at your sole risk and Company shall not be responsible for any inability to use, or any delays, errors or omissions with respect to, the Bagel Health Service or site. The Bagel Health Service, site, Bagel Health Service content and user data and all materials, information, products and services included therein, are provided on an "as is" and "as available" basis. Company expressly disclaims all warranties and representations of any kind, whether express or implied, relating to the Bagel Health Service, site, Bagel Health Service content and user data, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Company makes no warranty that
the Bagel Health Service or site will meet your requirements,
the Bagel Health Service or site will be uninterrupted, available for use at any given time, timely, secure, or error-free,
the results or other Bagel Health Service content that may be obtained from the use of the Bagel Health Service or site will be accurate or reliable or otherwise meet your expectations, nor that
any errors in the Bagel Health Service or site will be corrected.
You agree to defend, indemnify, and hold Company, its officers, directors, employees and agents, harmless from and against any and all claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in any way connected with
your access to or use of the Bagel Health Service, Site, Bagel Health Service Content and User Data;
your violation of the Agreement;
your violation of any applicable laws, rules or regulations in connection with your use of the Bagel Health Service or any Bagel Health Service Content or User Data;
any User Data submitted, posted, uploaded or provided by You;
any claim, action or proceeding brought by or for any Members; or
your violation of any third party right, including without limitation any intellectual property, publicity, confidentiality, property or privacy right in connection with your use of the Bagel Health Service or any Bagel Health Service Content or User Data.
Limitation of Liability
You expressly understand and agree that, to the maximum extent permitted by applicable law, Company, and its affiliates, officers, directors, employees, agents and licensors, shall not be liable for any indirect, incidental, special, consequential or exemplary damages, arising out of or in connection with this agreement or your use of the Bagel Health Service, site, Bagel Health Service content, and user data, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if company has been advised of the possibility of such damages). In no event will Company's (or its affiliates’, officers’, directors’, employees’, agents’ and licensors’) cumulative liability to you exceed ten thousand dollars (us $10,000) in direct damages, except to the extent such limitation is not permitted by applicable law.
Notwithstanding the foregoing, these limitations on liability do not apply to any violation by Company of the Health Insurance Portability and Accountability Act of 1996 (as amended) and the regulations promulgated thereunder (HIPAA) for which Bagel shall be solely responsible to the extent such violation is due to the negligence, willful misconduct, or breach of these terms by Bagel.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to You to the extent applicable law so requires.
The Agreement (including any terms and conditions expressly incorporated herein by reference) constitutes the entire agreement between You and Company with respect to the subject matter hereof and governs your use of the Bagel Health Service and the Site, superseding any prior and contemporaneous agreements, understandings or arrangements between You and Company with respect to such subject matter. Without limiting the foregoing, this Agreement supersedes all terms contained in any purchase order, invoice or other ordering document. You will not assign the Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Company. Any purported assignment or delegation by You without the appropriate prior written consent of Company will be null and void. Company may assign the Agreement or any rights hereunder (or delegate any obligations hereunder) without your consent. The Agreement and the relationship between You and Company shall be governed by the laws of the State of California, without regard to or application of its conflict of law provisions, rules and principles. You hereby agree that the state and federal courts of California shall have jurisdiction and venue to resolve disputes under or with respect to this Agreement and You hereby consent to such jurisdiction and venue. The failure of Company to exercise or enforce any right, remedy or provision of the Agreement shall not constitute a waiver of such right, remedy or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision to the full extent consistent with applicable law, and the other provisions of the Agreement shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action brought by You arising out of or related to use of the Services or the Agreement must be filed within two (2) years after such claim or cause of action arose or be forever barred. You and Company are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. The section titles in the Agreement are for convenience only and have no legal or contractual effect. The Bagel Health Service may be subject to United States export laws and regulations, and foreign equivalents (which may include restrictions on destinations, end users and end use), and You agree to comply with all such applicable laws and regulations.
Company may provide notices to You with respect to this Agreement or the Bagel Health Service by posting such notices to your Bagel Health Service account or by sending them to the e-mail address or other contact address You provide upon sign-up, registration or setting up your account. Any such notices shall be deemed properly and timely given to You hereunder. You consent to the use of:
electronic means to complete this Agreement and to provide You with any notices given pursuant to this Agreement; and
electronic records to store information related to this Agreement or your use of the Bagel Health Service and the Site.
Violations and Comments
Please report any violations of the Agreement or provide any comments or questions, including any technical questions regarding the Bagel Health Service, by emailing us at email@example.com. You agree, however, that:
by submitting ideas regarding the Bagel Health Service or Site to Company or any of its employees or representatives, You automatically grant Company a license to any of your intellectual property rights in these ideas; and
ideas regarding the Bagel Health Service or the Site submitted to Company or any of its employees or representatives automatically become licensed to Company.
You hereby grant to Company a royalty-free, worldwide, irrevocable, perpetual, sublicenseable license to use and incorporate into the Bagel Health Service and the Site any suggestions, enhancement requests, comments, recommendations or other feedback provided by You relating to the Bagel Health Service or Site or the operation or functionality thereof.