PLEASE READ THIS LICENSE AGREEMENT BEFORE USING MEDMINDER SERVICES, EQUIPMENT, AND DOCUMENTATION (COLLECTIVELY, THE “SYSTEM”). AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT IS A CONDITION FOR THE UTLIZATION OF THE SYSTEM. BY USING THE SYSTEM, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS MEDMINDER LICENSE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO THE USE OF THE SYSTEM, PROMPTLY RETURN THE SYSTEM TO MEDMINDER SYSTEMS, INC. FOR A FULL REFUND. SECTION 2.4 OF THE LICENSE AGREEMENT EXPLAIN THE RETURN PROCESS.
1. LICENSE TO USE THE MEDMINDER SYSTEM
1.1 License. MedMinder Systems, Inc. (“MedMinder”) offers distinct proprietary product lines consisting of (i) a pill dispenser system for drug adherence reminder service which combines an electronic pill box with the power of remote communication and the Internet (the “Pill Dispenser Product Line”) and (ii) a medical alert system combined with a pill dispenser (the “Medical Alert Product Line”). The Pill Dispenser Product Line and the Medical Alert Product Line shall be referred to collectively as the “System”. MedMinder hereby grants you a non-exclusive, non-transferable, license to create your profile and an account for the use of its turnkey solution System applicable to you in accordance with the terms of this license agreement (the “License”), for the Term (as defined in Section 2 below).
1.2 Ownership of System and Documentation.
(i) The entire right, title in and to the System and any associated documentation (the “Documentation”) and all modifications, enhancements and improvements to the System and the Documentation, whether made by MedMinder alone or with your or others’ assistance or input, shall be and remain exclusively with MedMinder, and you agree, if requested, to sign an appropriate document to assign such rights.
(ii) You agree to use the System only for the purposes described herein. Nothing in this License shall be deemed by implication or otherwise to grant you any right or license under any patent, patent application, copyright, invention, trade secrets, or other intellectual property right, except as expressly set forth in Section 1.1 above. The System and the Documentation contain material that is protected by United States and foreign patent, trademark and copyright laws and trade secret laws, and by international treaty provisions. As a licensee of MedMinder, you shall not, nor allow any third person (including individual or business entity), to reverse engineer, copy or otherwise appropriate the technology, design features or characteristics of the System and you shall not sublicense, rent, lease, loan, modify, assign, or otherwise transfer the License of the System or the Documentation. All rights not granted to you herein are expressly reserved by MedMinder. You may not remove any proprietary information of MedMinder from any copy of the Documentation or the System.
1.3 Amendments and Modification of License.
(i) You agree that MedMinder has the right to modify or amend this License, and any additional terms from time to time, effective upon making the modified provisions available on the MedMinder website (www.medminder.com).
(ii) You understand that you are responsible for regularly reviewing these terms and conditions and the continued use of the System after any such modifications shall constitute your consent to such changes, including changes in fees.
(iii) MedMinder does not and shall not assume any obligation to notify you of any such changes other than posting the updated License on its web site; provided, however, that MedMinder shall send you an e-mail notification of any such changes to the e-mail address you have provided to MedMinder. It shall be your sole responsibility to ensure that the e-mail address in your profile with MedMinder is current, and MedMinder shall not be responsible for any failure of the e-mail to reach you once the e-mail has been sent by MedMinder.
1.4 Enforcement of Rights in Equity.
You acknowledge that upon breach of Section 2, MedMinder shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief, in addition to any other remedy available to it under applicable law.
2. TERM AND TERMINATION
2.1 This License is effective from the date you begin using the System and shall continue for an indefinite period of time, unless or until your use of the System is terminated either by you or by MedMinder (the “Term”) pursuant to the terms of this License Agreement.
2.2. MedMinder may terminate this License immediately if:
(i) You fail to comply with the terms of this License;
(ii) You fail to timely pay MedMinder;
(iii) The System service is discontinued;
(iv) If a specific time was specified for the length of the service for the System you purchased and such time expires; or
(v) You have an overdue balance for any services or products purchased, leased or licensed from MedMinder, its representatives, agents or contractors.
You agree to reimburse MedMinder for any fees incurred by MedMinder in connection with your default or breach of this License, including but not limited to, collecting past due payments, credit card chargeback fees and attorney fees.
2.3 You may terminate this License at any time by notifying MedMinder in writing to MedMinder Systems, Inc., 30 Wexford Street, Needham MA 02494. Upon any termination and pending the return of the System components as required under Section 2.4 below, your account shall be closed. Provided, however, that no refunds shall be provided for partial months.
2.4 Within seven (7) days upon expiration or termination of the Term (the “Return Period”), You shall, unless agreed in writing by MedMinder, properly pack and return the System, unencumbered and in the same condition as when delivered by MedMinder, reasonable wear and tear alone excepted, to MedMinder Systems, Inc., 30 Wexford Street, Needham MA 02494. You agree to pay $300 per unit System at the end of the Return Period if a unit System is not timely returned of if a unit System has been destroyed, or damaged.
3. LIMITED WARRANTY, TECHNICAL SUPPORT AND LIMITATION OF LIABILITY
3.1 MEDMINDER HEREBY WARRANTS ONLY THAT THE SYSTEM WILL OPERATE IN SUBSTANTIAL COMPLIANCE WITH THE DOCUMENTATION. THIS WARRANTY IS MADE SOLELY TO YOU ALONE. THE WARRANTY IS FOR THE TERM OF THE LICENSE ONLY.
EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE, MEDMINDER MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE SYSTEM OR THE RELATED DOCUMENTATION. THE SYSTEM AND THE DOCUMENTATION ARE PROVIDED “AS-IS”, MAY HAVE OR RESULT IN ERRORS AND MAY PRODUCE UNEXPECTED RESULTS. MEDMINDER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SYSTEM, RELATED DOCUMENTATION, ITS USE, OPERATION OR SUPPORT.
YOU AGREE THAT ANY USE OF THE SYSTEM SHALL BE ENTIRELY AT YOUR OWN RISK. MEDMINDER IS UTLIZING COMMUNICATION NETWORKS OF OTHER CARRIERS OF WHICH IT HAS NO CONTROL AND YOU ARE AWARE THAT THE SYSTEM IS DEPENDENT ON THE AVAILABILITY AND FUNCTIONALITY OF THOSE CARRIER NETWORKS. YOU ARE AWARE THAT THE SYSTEM CONTAINS ELECTRONIC PARTS THAT MAY CEASE TO WORK.
YOU ARE RESPONSIBLE FOR INSTALLING AND TESTING THE SYSTEM IN ACCORDANCE WITH ANY APPLICABLE INSTRUCTIONS, INCLUDING TESTING THE SYSTEM ON A MONTHLY BASIS TO VERIFY THAT THE SYSTEM IS PERFORMING WITHOUT FAILURE, CONSISTENT WITH ITS INTENDED USE AND SPECIFICATIONS. YOU MAY NOT ALTER, MODIFY OR ATTEMPT TO REPAIR THE SYSTEM, EXCEPT PURSUANT TO INSTRUCTIONS FROM MEDMINDER.
MEDMINDER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IN CONNECTION WITH OR ARISING OUT OF THIS LICENSE, THE USE OF THE SYSTEM, OR ANY OBLIGATION RESULTING THEREFROM, INCLUDING, WITHOUT LIMITATION, THE SOLE, JOINT OR SEVERAL NEGLIGENCE OF MEDMINDER. IN NO EVENT SHALL MEDMINDER BE LIABLE FOR ANY DAMAGES, HOWEVER DESIGNATED, FOR FAILURE TO PERFORM UNDER THIS LICENSE TO THE EXTENT SUCH FAILURE TO PERFORM WAS THE RESULT OF ANY ACT, BREACH OR OMISSION TO ACT BY YOU, YOUR EMPLOYEES, AGENTS OR REPRESENTATIVES. YOU MAY NOT ALLOW A THIRD PARTY TO USE THE SYSTEM, UNLESS EXPRESSLY AUTHORIZED IN THIS LICENSE, AND AGREE TO INDEMNIFY AND HOLD MEDMINDER HARMLESS FROM ANY DAMAGES OR CLAIMS ARISING FROM SUCH USE BY ANY THIRD PARTY. NOTWITHSTANDING THE FOREGOING, IN THE EVENT ANY LIABILITY ARISES ON THE PART OF MEDMINDER FOR ANY REASON WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE SOLE, JOINT OR SEVERAL NEGLIGENCE OF MEDMINDER, SUCH LAIBILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000.00.
MEDMINDER DOES NOT PROVIDE (I) EMERGENCY MEDICAL OR OTHER FIRST RESPONDER SERVICES, (II) DIRECT MEDICAL CARE, (III) MEDICAL ADVICE, OR (IV) MEDICATIONS. ONLY PHYSICIANS, PHARMACISTS, OR OTHER LICENSED AND AUTHORIZED LEARNED INTERMEDIARIES MAY PRESCRIBE OR PROVIDE MEDICATIONS AND THE DIRECTIONS CONCERNING MEDICATIONS. MEDMINDER SHALL NOT BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST MEDMINDER BY YOU AND/OR BY ANY THIRD PARTY, BASED ON THE PROVISION, OR LACK OF PROVISION OF, MEDICAL CARE, EMEREGNECY OR OTHER FIRST RESPONDER SERVICES, OR MEDICATIONS TO YOU OR ANY OTHER PARTY.
MEDMINDER SHALL NOT BE LIABLE FOR ANY MISPLACEMENT OF MEDICATION, REMOVAL OF MEDICATION, WRONG DOSAGE, FAILURE TO REFILL OR TAKE MEDICATIONS, OR FOR DRUG INTERACTIONS. IT IS YOUR RESPONSIBILITY TO TAKE YOUR MEDICATION. MEDMINDER DOES NOT KNOW IF YOU ACTUALLY TOOK YOUR MEDICATION, OR IF YOU DEPOSITED THE CORRECT MEDICATION IN THE RELEVANT COMPARTMENTS AND IN THE RIGHT DOSAGE. ALTHOUGH MEDMINDER PROVIDES THE ABILITY FOR A USER TO ENTER MEDICATION NAMES, DOSAGES AND TIME, MEDMINDER IS NOT A DECISION SUPPORT SYSTEM AND DOES NOT CHECK FOR MEDICATION TO MEDICATION INTERACTIONS, MEDICATION TO FOOD INTERACTIONS, MEDICATION DOSAGES, MEDICATION FREQUENCIES OR ANY WAY TO DETERMINE IF THE MEDICATIONSARE SAFE, EFFECTIVE OR APPROPRIATE FOR YOU.
WITHOUT LIMITING THE EXCLUSIONS AND DISCLAIMER OF THIS SECTION 3, UNDER NO CIRCUMSTANCES SHALL MEDMINDER BE RESPONSIBLE OR LIABLE FOR ANY FAILURE BY YOU OR OTHERS TO TAKE MEDICATION ON TIME AND FOR ANY DIRECT OR INDIRECT CONSEQUCNES OF SUCH FAILURE, WHETHER OR NOT SUCH FAILURE IS RELATED TO THE MALFUNCTION OF THE SYSTEM. IN ADDITION, MEDMINDER SHALL NOT BE LIABLE TO ANY CUSTOMER AND/OR ANY THIRD PARTY, BASED ON ANY SYSTEM INFORMATION, AND/OR ANY OTHER INFORMATION COLLECTED BY THE SYSTEM, RECEIVED BY MEDMINDER, AND/OR USED BY MEDMINDER AFTER COLLECTION.
MEDMINDER SHALL NOT BE LIABLE FOR FAILURES DUE TO CAUSES BEYOND ITS CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, ACTS OF GOVERNMENT, FIRE, FLOOD, STRIKES, TERRORISM, WAR, OR ACTS OR OMISSIONS OF CARRIERS.
MEDMINDER IS NOT RESPONSIBLE FOR THE PROMPTNESS, SUFFICIENCY OR ADEQUACY OF THE ACTION OF ANY RESPONDER. MEDMINDER WILL NOT SEND ANY OF ITS PERSONNEL TO YOUR LOCATION IN RESPONSE TO AN EMERGENCY SIGNAL. NEITHER THE SYSTEM NOR THE SERVICES CAN PREVENT DEATH, BODILY OR PERSONAL INJURY, OR ANY OTHER HARM OR DAMAGE TO YOU OR OTHERS WHO USE THEM. MEDMINDER HAS NO CONTROL OVER RESPONSE TIMES FOR RESPONDERS. YOU RELEASE MEDMINDER FOR AND FROM ALL CLAIMS, LOSSES AND DAMAGES THAT MAY ARISE FROM ANY FORCED ENTRY OR ANY DELAYED RESPONSE BY RESPONDERS.
MEDMINDER IS NOT AN INSURER. THE FEES ASSOCIATED WITH ITS MEDICAL ALERT SYSTEM ARE BASED SOLELY UPON THE SERVICES MEDMINDER PROVIDES HEREUNDER AND IS PREMISED AND CONDITIONED UPON MEDMINDER’S LIMITATION OF LIABILITY AND OTHER RIGHTS ARISING UNDER THE RISK ALLOCATION CLAUSES CONTAINED IN THIS LICENSE. ACCORDINGLY, IT IS YOUR OBLIGATION TO MAINTAIN INSURANCE IN AN AMOUNT AND WITH COVERAGES SUFFICIENT TO PROVIDE FULL AND COMPLETE COVERAGE FOR ANY LOSS, DAMAGE OR EXPENSE THAT MAY BE SUSTAINED BY YOU, YOUR FAMILY OR OTHERS.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS LICENSE, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
3.2 Technical Support. For questions related to technical support you may call 1-888-MED-MIND at 9-5 EST, Monday-Friday. MedMinder reserves the right to change its technical support to its customers. For details about availability and coverage, please review at www.medminder.com.
3.3 UPON DELIVERY OF THE SYSTEM TO YOU, ALL RISK OF LOSS AND DAMAGE TO THE SYSTEM SHALL PASS TO YOU, PROVIDED, HOWEVER, THAT IF YOU RECEIVED A DEFECTIVE SYSTEM FROM MEDMINDER, YOU SHALL PROMPTLY NOTIFY MEDMINDER, AND MEDMINDER WILL EITHER REPAIR OR REPLACE THE SYSTEM, WHICH SHALL BE THE SOLE REMEDY AGAINST MEDMINDER FOR SUCH OCCURRENCE. As the sole remedy under the Warranty, MedMinder shall make appropriate adjustments, repairs, and replacement of the parts of the System device and equipment that, in its sole discretion, are deemed necessary to keep the System in good working order. The Warranty shall not cover adjustments, repairs, and replacements that are due to: accident, impact, theft, neglect, or misuse, exposure to temperature, humidity, electrical, magnetic and/or other extremes; exposure to water, sand, and/or other contaminants; alteration and/or modification of the System, including but not limited to, any deviation from the circuit or structural machine designs of the System, and/or deviations from software programming in the System, but excluding alterations, modifications, and/or deviations approved by MedMinder and/or performed by MedMinder; installation, removal, and/or modification of any features, capabilities, and/or parts from the System, maintenance performed by anyone other than authorized by MedMinder; use of supplies, batteries, or materials which do not meet MedMinder’s specification for use with the System; and/or use of the System for purposes and uses other than for which they were designed, and/or intended by MedMinder.
3.4 You shall be responsible for notifying MedMinder immediately if the System does not appear to be functioning properly for whatever reason. MedMinder and you shall cooperate to determine if any System components need to be returned and replaced. Any System component to be returned shall be returned in its original packaging (or, if not available, in comparable protective packaging) and shall be returned to MedMinder only after you have obtained a Return Merchandise Authorization (“RMA”) from MedMinder, which shall be provided on a timely basis and not unreasonably withheld by MedMinder. You agree to comply with MedMinder instructions with respect to the return of any System components, pursuant to which MedMinder shall pay reasonable shipping costs.
3.5 Disclaimer of Service Provider. You acknowledge that MEDMINDER’S SERVICE PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE WIRELESS MESSAGING SERVICES (“SERVICES”), THE WIRELESS MESSAGING NETWORKS THROUGH WHICH THE SERVICES ARE PROVIDED, THE APPLICATION, OR ANY COMPONENT THEREOF, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATED THERETO, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. Under no circumstances shall MedMinder’s Service Providers be liable to you or any other person for any loss, injury or damage, of whatever kind or nature, resulting from or arising out of any mistakes, errors, omissions, delays or interruptions in the receipt, transmission or storage of any messages, signals or information arising out of or in connection with the Services, the application, or the application’s use of the Service Provider’s wireless messaging network. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICE PROVIDER SHALL IN NO EVENT BE LIABLE TO YOU OR ANY OTHER PERSON FOR INDIRECT, INCIDENTAL OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS OR ANY OTHER FORM OF CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF THE SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER THAT IN THE EVENT ANY LIABILITY ARISES ON THE PART OF THE SERVICES PROVIDER, SUCH LIABILITY SHALL BE LIMITED TO THE MAXIMUM SUM OF $1,000. “Service Provider” shall include any party providing services ultimately used by you, including MedMinder and all unrelated third parties providing wireless services.
3.6 Subcontractors. You acknowledge and understand that MedMinder may use subcontractors to provide some or all of its services. this License shall apply to any such subcontractor and protect them in the same manner as it is applies to and protect them in the same manner as it applies to and protects MedMinder. Any subcontractor shall be considered an “independent contractor” and therefore not affiliated with MedMinder in any way as a partner, joint venture, agent or employee.
4.1 Entire Agreement, Amendment and Waiver. This License constitutes the entire agreement between the parties and supersedes all other understandings and agreements, oral or written, with respect to the subject matter hereof. Amendment or modification of this License by MedMinder shall be done in the manner provided in Section 1.3. You may not amend or modify the License without the written consent of MedMinder. No waiver by any party to this License of any provision of this License or any default, misrepresentation, or breach thereof, whether intentional or not, shall be valid unless the same shall be in writing and signed by the party making such waiver, nor such waiver be deemed to extend to nay prior or subsequent default, misrepresentation, or breach hereunder or affect in any way any rights arising by virtue of any prior or subsequent such default, misrepresentation, or breach.
4.2. Assignability, Binding Effect. Neither this License nor any of the rights or obligations under this License shall be assignable or transferable by you. MedMinder may transfer and assign its rights and obligations under this Agreement, all subject to assuring that legal obligations related to privacy laws are satisfied as part of the transition. The License shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns.
4.3 GOVERNING LAW, JURISDICTION, VENUE.
(i) Governing Law. This License and any dispute related directly or indirectly to this License shall be interpreted and governed by the laws of the Commonwealth of Massachusetts without regard to its principles of conflict of laws.
(ii) Choice of Forum – Arbitration. Any controversy or claim arising out of or relating to this License, or the breach thereof (collectively, the “Claim”), shall be settled exclusively by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall be held in Boston, Massachusetts. Each party shall be responsible for its own costs and expenses.
(iii) If the submission of a Claim to arbitration pursuant to Section 4.3(ii) is adjudicated by a competent legal authority to be illegal and invalid under applicable law, then the parties agree as an alternative, to submit the case to the exclusive jurisdiction of the federal and state courts located within the Commonwealth of Massachusetts.
(iv) WAIVER OF JURY. BY AGREEING TO BINDING ARBITRATION, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM. FURTHERMORE, WITHOUT INTENDING IN ANY WAY TO LIMIT THIS AGREEMENT TO ARBITRATE, TO THE EXTENT ANY CLAIM IS NOT ARBITRATED, THE PARTIES IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF SUCH CLAIM. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.
(v) Service of Arbitration or Suit. All service of arbitration filings and service of process may be pursuant to Section 4.6 “Notice”.
4.4 Severability. In the event that any provision of this License shall be held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this License should remain in full force and effect and be interpreted as if such invalid or unenforceable provision had not been a part hereof. Provided, however, that if any particular portion of this Agreement shall be adjudicated invalid for any reason, this License shall be deemed amended to diminish such unenforceable provision such that the remaining provisions shall be the broadest permitted under applicable law.
4.5 Export Control. You agree not to export, re-export, transfer or otherwise transmit any part or portion of the System into any country or to use the System in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations.
4.6 Notice. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (i) one after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt, (ii) three days after being sent by registered or certified mail, return receipt requested, postage prepaid, (iii) with respect to notice given by MedMinder only, MedMinder may send a notice by electronic email to the email address used to open an account for you and such notice shall be deemed delivered when sent, (iv) with respect to any amendment or modification of the License by MedMinder, MedMinder may provide notice as provided in Section 1.3. Each party shall be responsible to update its own contact information in the manner provided herein. MedMinder may amend its contact information by amending its contact information on its web page.
4.7 Interpretation. Whenever the context may require, any pronouns used in this License shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa. Whenever the words “include” or “including” are used in this License, they shall be deemed to be followed by the words “without limitation”.
4.8 Survival. The provisions of this License intending by their terms to survive the expiration or termination of this License shall so survive, including, without limitation, provisions regarding intellectual property rights, limitation of liabilities, exclusions and disclaimers, and the general provisions of this Section 4.