ReviewMD Master Terms of Service
ReviewMD including all of its related applications, or platforms (individually and collectively, the “Service”), is owned and operated by ReviewMD, LLC. (“ReviewMD,” “we,” “us,” or “our”). By using, installing, or accessing the Services (as defined below), by signing or clicking to accept these terms or any Subscription Documentation (as defined below) referencing these terms, you agree to be bound by the following terms and conditions (together, these “Terms”, or this “Agreement”).
If you are using a ReviewMD Service on behalf of a company, organization, or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee, agent, or other authorized representative with all necessary authority to bind that entity to this Agreement.
This Agreement includes and hereby incorporates by reference any Subscription Documentation executed between you and ReviewMD, as well as any policies or exhibits linked to or referenced herein. If you have entered into a separate written agreement with ReviewMD concerning specific Services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms. Please note that we may modify this Agreement as described in Section 16.10 below.
1.1. “Business Associate Agreement” (hereinafter “BAA”) means a written agreement between a Covered Entity and a Business Associate (as those terms are defined under HIPAA) containing the elements specified at 45 CFR 164.504(e).
1.2. “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
1.3. “HIPAA” means the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. §1320d through d-8, as amended from time to time, and the requirements of any regulations promulgated under either the HITECH Act or HIPAA, including, without limitation, the federal privacy regulations as contained in 45 C.F.R. Parts 160 and 164, the federal security standards as contained in 45 C.F.R. Parts 160 and 162, and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160, all as may be amended from time to time.
1.4. “Law(s)” means all applicable local, state, federal, rules, and regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, the CAN-SPAM Act.
1.5. “Protected Health Information” (hereinafter “PHI”) has the same meaning as that term is defined in HIPAA.
1.6. “Territory” means the United States unless otherwise expressly set forth in Client’s Subscription Documentation. Other terms are defined in other Sections of this Agreement.
2.1. Services. ReviewMD provides a proprietary multi-product Service that includes without limitation reputation management tools (“Reviews” and “Response”), Audit of GBP and GBP Optimizing, Photo Itemizing, Keyword Gap and Competitor Gap, Citations, and related services, and any other services ReviewMD may offer from time to time. Client will, from time to time, enter into a proposal, quote, services/purchase agreement, order form, statement of work, to accept or agree to an online registration form (“Subscription Documentation”), which references this Agreement and details the Services ordered from ReviewMD and, if applicable, the usage limits or other scope of use descriptions for the Services (including without limitation any usage or volume limits, numerical limits on Authorized Users, and descriptions of product feature levels) (“Scope of Use”). Client may be provided the option to purchase certain Services. The Services included in ReviewMD’s standard Service are currently specified as Customer Experience and Review Subscription Services. ReviewMD has no obligation to provide any services or perform any tasks not specifically set forth in this Agreement, including any applicable Subscription Documentation.
2.2. Alteration of Subscription Documentation. Any amendments or modifications to any existing Subscription Documentation must be agreed to in writing by the parties. ReviewMD has no obligation to perform any Services under any amended Subscription Documentation until the parties have agreed to the effect of such changes on the applicable Fees.
2.3. Modification of the Services. ReviewMD reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), or to alter the offering of the Services (including by adding, limiting, or discontinuing certain services) temporarily or permanently. ReviewMD also reserves the right to replace certain Services with functionally equivalent Services or Bundles, at its sole discretion. In the event ReviewMD makes any modification or alteration to the Services or the offering thereof that has a material adverse effect on the functionality of the Services ordered under your Subscription Documentation, Client may terminate this Agreement and receive a pro-rated refund of pre-paid, unused Fees for the remainder of Client’s Subscription Term (as defined below).
2.4. Additional Terms. Client’s subscription to or use of certain Services or features of the Services may be subject to additional terms, policies, rules, or guidelines that we may post on or link to from these Terms or the Services (the “Additional Terms”). To the extent applicable, all Additional Terms are incorporated by this reference into, and made a part of, these Terms. If Client purchases or otherwise uses any of the following Services, Client’s use is subject to and Client accepts the applicable Additional Terms, as set forth below.
2.4.1. ReviewMD Payments. If Client uses ReviewMD Payments, Client agrees to be bound by the ReviewMD Payments Service Terms
2.4.2. ReviewMD BAA. If Client uses ReviewMD Customer Experience & Reputation Service, Client agrees to be bound by the ReviewMD Business Associate Agreement
2.4.3. ReviewMD Terms and Conditions. If Client uses the ReviewMD Services, Client agrees to be bound by the ReviewMD Terms and Conditions.
2.4.4 ReviewMD Service Agreement. If Client uses the ReviewMD Services, Client agrees to be bound by the ReviewMD Service Agreement.
3.1. Use of Services. Subject to all terms of this Agreement, including any Additional Terms, ReviewMD grants Client a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the applicable Subscription Term to: (a) access and use the Services, designated on Client’s Subscription Documentation solely for Client’s internal business purposes, but only in accordance with this Agreement, the applicable Subscription Documentation, and all applicable Scope of Use descriptions. ReviewMD makes no representation that the Services are appropriate or available for use in locations outside the US (or that all products or features of the Services are available throughout the US).
3.2. Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees, agents, contractors, and any other users (including but not limited to Developer Partners or Third-Party Providers) whom Client has authorized to access the Services on its behalf (“Authorized Users”): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all Laws when using the Services. Client may permit its Authorized Users to use the Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement.
3.3. Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with this Agreement. Client will be solely responsible for authorizing Users. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, ReviewMD may, in its sole discretion, suspend any Authorized User’s access to the Services, as set forth in Section 8.2 below. Client is solely responsible for ensuring that any user cards for the Services are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all Laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts. Client must notify ReviewMD within twenty-four (24) hours of any breach of security or unauthorized use of its account. Use by all Authorized Users in aggregate will count towards any applicable Scope of Use restrictions.
3.4. Use by Customers. Any person that is a client, customer, or patient of Client, or that is a potential client, customer, or patient of Client (“Customer(s)”) who accesses and/or uses the Services, including via Client’s account or website, is subject to the Acceptable Use Policy and such other terms as may be provided by ReviewMD from time to time, which includes ReviewMD’s right to remove or disable access to any Customer or content or resource that violates the Acceptable Use Policy.
3.5. General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense, or provide access to the ReviewMD Technology (as defined below) to a third party (except Authorized Users as specifically authorized above); (b) incorporate the ReviewMD Technology (or any portion thereof) into, or use it with or to provide, any site, product, or service, except as otherwise expressly authorized by ReviewMD in writing; (c) use the ReviewMD Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the ReviewMD Technology (which is deemed ReviewMD’s Confidential Information); (e) modify or create a derivative work of the ReviewMD Technology or any portion thereof or access the services with the intent to copy or create a competitive or derivative product/service; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any ReviewMD Technology or Services, except to the extent expressly permitted by applicable Law and then only upon advance notice to ReviewMD; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the ReviewMD Technology other than as specifically permitted above; (i) use the Services in violation of the Acceptable Use Policy; or (j) remove or obscure any proprietary or other notices contained in the ReviewMD Technology including in any reports or output obtained from the ReviewMD Technology.
4.1. Rights in Client Data. As between the parties, Client retains all right, title, and interest (including any intellectual property rights) in and to any text, images, or other content and data that Client selects or submits for use or incorporation with the Services (“Client Data”). To the extent Client is a Covered Entity or a Business Associate, as those terms are defined in HIPAA, “Client Data” also includes PHI. “Customer Data” means data related to the identity, characteristics, and activities of Customers, collected or submitted to the Services by Client or captured by the Services. “Third-Party Content” means content, data, or other materials that Client provides to the ReviewMD Services from its third-party data providers, including through Third-Party Products (as defined below) used by Client. Client hereby grants ReviewMD a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Client Data as necessary to provide the Services and related services to Client and as otherwise provided herein and in ReviewMD’s Privacy Policy (the “Privacy Policy”), and hereby instructs ReviewMD to do the same. Client further instructs ReviewMD to use and disclose Customer Data as necessary to provide the Services consistent with this Agreement and as otherwise set forth in the Privacy Policy.
4.2. Aggregate/Anonymous Data. Client agrees that ReviewMD will have the right to generate usage data from Client use of the Services and may aggregate anonymized Client Data (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is ReviewMD Technology, which ReviewMD may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve ReviewMD’s products and services and to create and distribute reports and other materials). ReviewMD will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable Laws. If Client and ReviewMD have entered into a BAA, ReviewMD will use the Aggregate/Anonymous Data only in conformity with the terms of such agreement.
4.3. Monitoring. Client understands and agrees that ReviewMD may monitor and analyze Client Data or Customer Data (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Services; to improve Client’s experience using the Services; to customize and communicate informational or product offerings and promotions to Client; to ensure compliance with the Acceptable Use Policy (including taking corrective action permitted therein); and/or to make the Services more helpful or useful to Client and other users. This may include use of technologies (such as session replay services, transcription services, cookie, pixel, or other tracking technologies) that maintain records of browsing sessions and other activities on the Website and Services. Client also understands that any third-party platform(s) or Third-Party Provider(s) Client elects to use or access in conjunction with the Services may also monitor and analyze the Client Data and/or Customer Data Client uses or accesses in connection with such third-party platforms, to customize and communicate information or product offerings and promotions to Client; to ensure compliance with applicable terms of use; and to make such third-party platform(s) more helpful or useful to Client and other users.
5.1. Warranty. Client warrants and represents that it will use the Services in full compliance with all Laws and terms of this Agreement, including the Acceptable Use Policy, and that it will not use the Services in a manner that would cause ReviewMD to violate any obligation with respect to any such Laws. Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to ReviewMD, or otherwise has legal rights to provide such Client Data, and Client Data will not violate third-party rights, including intellectual property, privacy, and publicity rights; (b) ReviewMD’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, regulation, or other third-party rights; (c) any Client Data Client and/or Client’s authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, and will only concern Client or the goods and/or services that Client provides; (d) Client is authorized to provide ReviewMD with any Customer, Client, or Authorized User information it provides in connection with the Services, including any personally identifying information; and (e) Client and/or Client’s Authorized User(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify ReviewMD immediately. Additionally, if an integration is included in the Services Client orders, Client grants ReviewMD the right to access Client’s Data or Client’s CRM system directly or through a third-party service for the purposes of fulfilling ReviewMD’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting ReviewMD such right.
5.2. Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to communicate electronically only with Client’s own current Customers who have consented to the receipt of such communications and are provided with all necessary notices in accordance with applicable Laws. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable Laws, prior to utilizing the Services; (b) obtain all necessary rights, releases, and consents to allow Client Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant ReviewMD the rights herein; and (c) use the Services to make or send communication only in compliance with all Laws, the terms of this Agreement (including the Acceptable Use Policy) and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Client also understands and agrees that the Services are intended primarily to be used for transactional and/or informational communications. If Client uses the Services to make or send any written electronic communication (including but not limited text messages) that includes advertisements, marketing, telemarketing, or promotional messaging, as such are defined in applicable Laws (hereinafter, collectively “Marketing”), Client must, in each instance, clearly designate such message(s) as “Marketing” within the Service prior to sending. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable Laws and the Acceptable Use Policy and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with Laws or the Acceptable Use Policy, and ReviewMD expressly disclaims any liability for Client’s non-compliance. ReviewMD reserves the right to suspend or terminate Client’s access to the Services or specific feature(s) of the Services if ReviewMD believes, in its sole discretion, that Client has violated this Section 5.
6.1. Fees. Unless otherwise specified on Client’s Subscription Documentation, the Services are provided on an ongoing, per license subscription-basis, including automatically recurring payments for periodic charges, according to the terms and conditions of the Subscription Documentation (“Subscription”). Client agrees to pay to ReviewMD the fees for the Subscription to the Services or any Bundle (“Subscription Fees”) and any additional fees (if applicable), all as set forth in the applicable Subscription Documentation or Additional Terms (collectively, the “Fees”). Except as otherwise specified in the applicable Subscription Documentation, Client agrees to pay ReviewMD the applicable Subscription Fees according to the terms of this Agreement. Unless otherwise specified in the applicable Subscription Documentation, payment for all Fees is due within five (5) days of the invoice date.
6.2. Payment of Fees. Unless otherwise specified in the applicable Subscription Documentation, all Subscription Fees will be paid monthly in advance (though overage fees, if any, may be charged in arrears), and all references to currency set forth herein will mean U.S. dollars, with all payments hereunder to be made in U.S. dollars. Subscription Fees are non-refundable and non-creditable. If the payment method selected on Client’s Subscription Documentation is credit card, ACH, or direct debit, Client acknowledges and authorizes ReviewMD to charge Fees and other amounts automatically, on an auto-renew basis on your Subscription Start Date (as defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-renew basis on Client’s existing Subscription Start Date. ReviewMD may from time to time provide notice to Client regarding any Renewal Term(s) and the auto-renew processes. The Subscription will continue unless and until you or ReviewMD terminate your Subscription in accordance with Section 8. You must cancel your Subscription before it renews in order to avoid billing the next periodic Subscription Fees to your account. If Client elects to pay by credit card, then you are responsible for both (a) enabling auto-recharge on your account and (b) ensuring that your account has a sufficient positive balance to cover all Fees when due. Should ReviewMD be unable to process/receive the Fees when due and owing, payment shall be considered overdue. ReviewMD will have the right to charge interest on all overdue amounts equal to the maximum amounts allowed by applicable Law. Additionally, after payment becomes overdue, ReviewMD will have the right to immediately suspend Client’s access to the Services and/or seek to enforce Client’s payment obligations, including through the use of third-party services. If ReviewMD sends Client’s account for collection and/or initiates legal action to collect overdue amounts, ReviewMD may seek to recover all costs and expenses of such action, including reasonable legal or attorney’s fees, court costs, and expenses.
7.1. Term. This Agreement is effective until the applicable Subscription Term for the Services has expired or the Subscription is terminated as expressly permitted herein. Unless otherwise stated in Client’s Subscription Documentation, the initial term for any Subscription to the Services is twelve (12) months and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either party gives written notice of non-renewal at least one (1) month before the end of the then-current Subscription Term. Client may give notice of non-renewal by sending an email to Support@GoogleReviewMD.com. If no Subscription start date is specified on the applicable Subscription Documentation, the Subscription starts when Client first obtains access to the Services (“Subscription Start Date”). By agreeing to any Subscription Documentation, Client is agreeing to pay applicable fees for the entire Subscription Term. Client cannot cancel or terminate a Subscription Term except as expressly permitted by this Section 7.1 (Term) (Termination for Cause). Unless Client’s Subscription Documentation expressly states otherwise, any additional Services purchased during Client’s Subscription Term will be coterminous with Client’s most recent ReviewMD platform Subscription Term.
8.2. Suspension of Services. ReviewMD may suspend Client’s (or any Authorized User’s, as applicable) access to the Services if: (a) Client’s account is overdue, or (b) Client has exceeded its Scope of Use limits. ReviewMD may also suspend Client’s (or any Authorized User’s, as applicable) access to the Services, remove Client Data, or disable Third-Party Products if it determines that: (i) Client has breached Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations); or (ii) suspension is necessary to prevent harm or liability to other clients of ReviewMD or third parties or to preserve the security, stability, availability, or integrity of the Services. ReviewMD will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period other than for any suspension that: (a) is not due to the fault of the Client, and (b) lasts longer than five (5) days. Unless this Agreement has been terminated, ReviewMD will cooperate with Client to restore access to the Services once it verifies that Client has resolved the condition requiring suspension.
8.3. Termination for Cause. Either party may terminate this Agreement, including any related Subscription Documentation, if the other party: (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice detailing the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter) If Client terminates during the Subscription Term for any reason other than the foregoing, Client will be responsible for the Fees due for the entire Subscription Term. ReviewMD may also terminate this Agreement or any related Subscription Documentation immediately if Client breaches Sections 3 (Use Rights; Restrictions) or 5 (Client Obligations), for repeated violations of other Sections of this Agreement, or if applicable, a breach of the parties’ BAA.
8.4. Effect of Termination. Upon any expiration or termination of this Agreement or any Subscription Documentation: (a) Client’s license rights will terminate and it must immediately cease use of the Services (including any related ReviewMD Technology) and delete (or, at ReviewMD’s request, return) any and all copies of any ReviewMD documentation, scripts, passwords or access codes, and any other ReviewMD Confidential Information in Client’s possession, custody, or control; and (b) Client’s right to access any Client Data in the applicable Services will cease, and unless otherwise precluded by a BAA or other obligation under applicable Law, ReviewMD may delete any such data in its possession at any time. If ReviewMD terminates this Agreement for cause as provided in Section 8.3 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
8.5. Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 3 (Use Rights; Restrictions); 4 (Client Data); 6 (Fees and Payment); 7 (Term and Termination); 9 (Confidential Information); 10 (ReviewMD Technology); 11 (Third-Party Providers and Third-Party Products); 12 (Indemnification); 13 (Disclaimers); 14 (Limitations of Liability); 15 (Dispute Resolution); and 16 (General).
9.1. Obligation of Confidentiality. Except as otherwise expressly permitted in this Agreement, each party (as the receiving party) must: (a) hold in confidence and not disclose the other party’s Confidential Information to third parties; and (b) use the other party’s Confidential Information only as necessary to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents, contractors, subcontractors, or Authorized Users having a legitimate need to know (which, for ReviewMD, includes the subcontractors referenced in Section 16.6), provided that such party remains responsible for any recipient’s compliance with the terms of this Section 9 and these recipients are bound to confidentiality obligations no less protective than this Section.
9.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (a) is or becomes public knowledge through no fault of the receiving party; (b) was known by the receiving party prior to receipt of the Confidential Information; (c) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law, subpoenas, or court orders, provided it uses commercially reasonable efforts to notify the other party (where permitted to do so) and cooperates in any effort by the other party to obtain confidential treatment for the information.
9.3. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
10.1. Ownership and Updates. By accepting this Agreement, Client acknowledges that it is obtaining only a limited right to use the Services and irrespective of any use of the words “purchase”, “sale”, or similar terms, no ownership rights are transferred to Client under this Agreement and, except as expressly permitted by such limited right, Client may not make any use of ReviewMD Technology. Client agrees that ReviewMD (or its suppliers) exclusively retains all rights, title, and interest (including all intellectual property rights) in and to all Services, products, any and all related documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Services), anything delivered as part of support, materials or other services, and any updates, modifications, or derivative works of any of the foregoing, including as may incorporate any Suggestions (as defined below) provided by ReviewMD (collectively, “ReviewMD Technology”) (which is deemed ReviewMD’s Confidential Information) and reserves any licenses not specifically granted herein. Furthermore, ReviewMD exclusively owns and reserves all right, title, and interest in and to ReviewMD’s Confidential Information and any data, in anonymized or aggregated form that does not identify you, any end users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. The Services are offered as an online, hosted product. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Services and that ReviewMD at its option may make updates, bug fixes, modifications, or improvements to the Services from time-to-time.
10.2. Suggestions. If Client elects to provide any suggestions, comments, improvements, information, ideas, or other feedback or related materials to ReviewMD (collectively, “Suggestions”), Client hereby grants ReviewMD a worldwide, perpetual, non-revocable, sublicensable, royalty-free right, and license to use, copy, disclose, license, distribute, and exploit any such Suggestions in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits ReviewMD’s right to independently use, develop, evaluate, or market products, whether incorporating Suggestions or otherwise.
ReviewMD may, from time to time, contract with a third party to facilitate certain features of the Services, including as described in Section 16.6 of this Agreement. ReviewMD may also allow or facilitate Client to make arrangements with other third-party providers that provide products or services in connection with, but which are not included in, the Services as defined in this Agreement (“Third-Party Provider(s)”). If Client elects to use any Third-Party Provider(s) or any applications, integrations, add-ons, software, code, online services, systems, and other products that are not ReviewMD Technology (“Third-Party Products”) in connection with the Services, such Third-Party Provider(s) or Third-Party Products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Provider(s) or Third-Party Products may require Client to enter into separate terms and conditions with such third-party. Unless ReviewMD expressly agrees otherwise in a signed writing, ReviewMD (a) is not a party to any such terms; (b) will not be liable thereunder; (c) does not warrant or support Third-Party Providers, Third-Party Products; or Third-Party Content; and (d) disclaims all responsibility and liability for Third-Party Providers and their access to the Services, including their modification, deletion, disclosure, or collection of Client Data. ReviewMD is not responsible in any way for Client Data once it is transmitted, copied, or removed from the Services. Unless ReviewMD expressly states otherwise in signed writing, Third-Party Providers are not “subcontractors” under this Agreement, and ReviewMD disclaims all responsibility and liability for the actions or omissions of any Third-Party Providers, including but not limited to Developers.
12.1. Indemnification by Client. Client will indemnify and hold harmless ReviewMD and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “ReviewMD Entities”) from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to: (a) your unauthorized use of, or misuse of, the Services, including but not limited to the ReviewMD Marketplace and ReviewMD API, as applicable; (b) your violation of, or any claim that you have violated, any applicable Law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (c) any dispute or issue between you and any third party (including but not limited to your Customers, any Developer Partners, and any Third-Party Providers); (d) any demand, dispute, or issue (including without limitation fee disputes) between you and any Payment Service Provider(s) (as defined in the applicable Additional Terms); (e) any Client Data; (f) ReviewMD’s use, as contemplated in this Agreement, of any information provided to ReviewMD by you or your Customers; (g) breach or alleged breach of this Agreement, including Client’s warranties and obligations; or (h) if applicable, any breach or alleged breach of Client’s obligations contained in the BAA. Client also agrees to defend the ReviewMD Entities against these claims at ReviewMD’s request, but ReviewMD may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. In the event ReviewMD assumes exclusive defense of such claims, Client agrees to cooperate with our defense of any such claims. Client may not settle any claim without ReviewMD’s prior written consent if the settlement does not fully release ReviewMD from liability or would require ReviewMD to admit fault, pay any amounts, or take or refrain from taking any action.
12.2. Indemnification by ReviewMD. ReviewMD will indemnify and hold Client harmless from and against any third-party claims and related costs, damages, liabilities, and expenses (including reasonable attorney’s fees) arising from or pertaining to (a) ReviewMD’s gross negligence or willful misconduct; or (b) ReviewMD’s infringement, misappropriation, or violation of a third party’s intellectual property rights. ReviewMD also agrees to defend Client against these claims at Client’s request, but Client may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. ReviewMD must not settle any claim without Client’s prior written consent if the settlement does not fully release Client from liability or would require Client to admit fault, pay any amounts, or take or refrain from taking any action.
12.3. Exclusions to ReviewMD’s Indemnification. ReviewMD will not be required to indemnify Client under Section 12.2(b) above, to the extent that the infringement, misappropriation, or violation of a third party’s intellectual property rights arises from: (a) modification of the Services by Client, its Authorized Users, Developer Partners, Third-Party Providers, affiliates, employees, or contractors in conflict with Client’s obligations or as a result of any prohibited activity under this Agreement, (b) use of the Services in a manner inconsistent with this Agreement, the Acceptable Use Policy, the Additional Terms, the Subscription Documentation, or any other agreement related to this Agreement, or (c) use of the Services in combination with any other application, product, or service not provided by ReviewMD if such claim would not have occurred without such combination.
13.1. EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL REVIEWMD TECHNOLOGY AND RELATED SERVICES, MATERIALS, AND CONTENT AVAILABLE THROUGH THE REVIEWMD TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER REVIEWMD NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. REVIEWMD MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT REVIEWMD TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT REVIEWMD TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, AND REVIEWMD DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. REVIEWMD WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PROVIDERS, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-REVIEWMD SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE, AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON REVIEWMD TECHNOLOGY OR REVIEWMD’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). THE DISCLAIMERS IN THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
13.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR REVIEWMD ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE REVIEWMD ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. REVIEWMD DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY REVIEWMD TO ITS CLIENT(S) DO NOT CONSTITUTE LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.
14.1. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL REVIEWMD OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL REVIEWMD’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO REVIEWMD FOR THE APPLICABLE SERVICE(S) OR RELATED SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, REVIEWMD’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY REVIEWMD TECHNOLOGY, OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14.2. FOR CLIENTS LOCATED IN AUSTRALIA ONLY. TO THE EXTENT THAT LIABILITY CANNOT BE EXCLUDED UNDER THIS SECTION 14, AND WHERE THE ACL APPLIES, REVIEWMD’S LIABILITY IS LIMITED AT THE OPTION OF REVIEWMD TO (A) IN THE CASE OF ANY PRODUCT, ANY ONE OR MORE OF THE FOLLOWING (i) THE REPLACEMENT OF THE PRODUCT OR THE SUPPLY OF EQUIVALENT PRODUCT, (ii) THE REPAIR OF THE PRODUCT, (iii) THE PAYMENT OF THE COST OF REPLACING THE PRODUCT OR OF ACQUIRING EQUIVALENT PRODUCT, OR (iv) THE PAYMENT OF THE COST OF HAVING THE PRODUCT REQUIRED, IF APPLICABLE; AND (B) IN THE CASE OF ANY REVIEWMD TECHNOLOGY OR SERVICES OR RELATED SERVICES PERFORMED BY REVIEWMD: (i) THE SUPPLY OF THOSE SERVICES AGAIN, OR (ii) THE PAYMENT OF THE COST OF HAVING THOSE SERVICES APPLIED AGAIN.
If a dispute arises between the parties related to this Agreement or the Services provided therefrom, and the dispute cannot be settled through informal negotiations, the parties agree to resolve their dispute (referred to herein as “Claim(s)”) as follows:
15.1. Mediation. The parties agree to participate in mediation to settle their Claims in accordance with the rules and procedures found in Georgia Code
15.1.1. Notice. Mediation must be conducted within sixty (60) days from a party receiving written notice of Claims from a complaining party. The notice must contain a detailed description of the nature of the Claims and the requested relief sought.
15.1.2. Mediator Selection and Mediator Fees. A neutral mediator will be selected as mutually agreed upon by the parties. The mediator’s fees and costs will be paid to the mediator at the end of mediation, with both parties equally sharing the mediation costs and paying their own legal fees and costs.
15.1.3. Location. Mediation will occur in Atlanta, Georgia.
15.2. Judicial Action. If the parties are unable to resolve the Claim pursuant to the mandatory mediation referenced above (or if one of the parties refuses to participate in the mandatory mediation or fails to respond to a complaining party’s request for mediation), the parties may subsequently file a judicial action.
15.3. Disputes Not Subject to the Mediation Process. The following claims or actions are not subject to the mandatory mediation provisions of this Section 15:
15.3.1. A request for an order of injunctive relief and any related incidental damages;
15.3.2. A request for an order to prevent the disclosure of or misuse of Confidential Information or trade secrets; and/or
15.3.3. Enforcement of Client’s payment obligations as set forth under Section 6.
16.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign or purport to assign any of its rights or obligations under this Agreement without the advance written consent of the other party (which must not be unreasonably withheld), except that ReviewMD may assign this Agreement without consent to an affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2. Notices. Any notice or communication to ReviewMD under this Agreement must be in writing. The client must send any notices under this Agreement (including breach notices) to ReviewMD Mailing Address (include “Attn. Legal Department” in the subject line) or by email to Myron@GoogleReviewMD.com. ReviewMD may send notices to the e-mail addresses on Client’s account or, at ReviewMD’s option, to Client’s last-known postal address. ReviewMD may also provide operational notices regarding the Services or other business-related notices through conspicuous posting of such notice on ReviewMD’s Website or the Services. Each party hereby consents to receipt of electronic notices and agrees that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing. ReviewMD is not responsible for any automatic filtering Client or its network provider may apply to email notifications.
16.3. Publicity. Unless otherwise specified in the applicable Subscription Documentation, ReviewMD may use Client’s name, logo, and marks to identify Client as a ReviewMD Client on ReviewMD’s website and other marketing materials.
16.4. ReviewMD Communication with Client. You agree that ReviewMD may send you emails and text messages, including transactional, operational, and marketing messages, possibly using automated technology, to the email or phone number you provide to ReviewMD. Message and/or data rates may apply to such messages, and you may opt out at any time. You will keep your contact information up to date and will notify ReviewMD immediately in the event that your contact information changes.
16.5. Referral Programs. ReviewMD may, from time to time, and in its sole discretion, offer referral programs or opportunities to certain ReviewMD clients or users. Such programs or opportunities may include incentives for such clients or users to promote ReviewMD and/or its Services to their family or friends. Participation in such programs or opportunities is completely voluntary and is subject to this Agreement and the ReviewMD Referral Program Terms (“Referral Program Terms”). ReviewMD may modify, discontinue, or terminate any referral program or similar opportunity at any time, without notice.
16.6. Subcontractors. ReviewMD may use subcontractors and permit them to exercise the rights granted to ReviewMD in order to provide the Services and related services under this Agreement. Except as otherwise set forth in the DPA, ReviewMD will not be required to obtain Client’s consent or provide notice of such subcontracting or delegation. To avoid any doubt, ReviewMD remains responsible for the performance of its obligations or the exercise of its rights under this Agreement regardless of any subcontracting or delegation.
16.7. Subpoenas. Nothing in this Agreement prevents ReviewMD from disclosing Client Data to the extent required by law, subpoenas, or court orders, but ReviewMD will use commercially reasonable efforts to notify Client where permitted to do so.
16.8. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
16.9. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act or order.
16.10. Amendments; Waivers. ReviewMD may update or modify these Terms (including the Additional Terms and any referenced policies and other documents) from time to time by giving reasonable notice and posting a revised version on the Website or Services or by notification via the email associated with your account. If a change to these Terms materially modifies your rights or obligations, you may be required to click through the updated Terms to show acceptance and to continue to use the Services. Material modifications are effective upon the earlier of your acceptance of the modified Terms or upon your next subsequent Subscription Term. Immaterial modifications will become effective upon posting or notification, and continued use of the Services or Website, following the update, will constitute acceptance of the updated Terms. If Client does not agree to the updated Terms, Client will no longer have the right to use the Services, except where applicable Law requires different treatment. Except as otherwise described in this Section 16.10, any modification, supplementation, replacement, novation or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights or delay in exercising any right under this Agreement. No waiver of any provision of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement will not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.
16.11. Headings. The headings used in this Agreement are for ease of reference only. They are not intended as a complete restatement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
16.12. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect, and all other provisions remain in full effect.
16.13. No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Subscription Documentation and not any affiliates. Furthermore, Client’s affiliates are not permitted to use the Services under these Terms unless an affiliate agrees to these Terms individually and creates its own account.
16.14. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.
16.15. Entire Agreement. This Agreement, including these Terms and any applicable Subscription Documentation, represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the ReviewMD Technology or any other subject matter covered by this Agreement. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only and have no legal effect.
16.16. Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery will be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile or other reproduction hereof.
16.17. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Georgia and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement will be the state courts located in Atlanta or Fulton County, Georgia, and both parties submit to the personal jurisdiction of these courts.
16.18. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
