Software License Agreement Terms and Conditions

The following are the terms and conditions for the use of the Visualize Health LLC (“Visualize Health”) software services and the Visualize Health website and its respective content (“Site”) together with the services available from the website (collectively “Services”).  PLEASE READ THIS AGREEMENT CAREFULLY.  BY SIGNING THE AGREEMENT AND/OR USING THE SERVICES, YOU, EITHER AN INDIVIDUAL OR A LEGAL ENTITY THAT YOU REPRESENT AS AN AUTHORIZED EMPLOYEE OR AGENT, (“YOU”) AGREE THAT YOU ARE ELIGIBLE FOR AN ACCOUNT, AND YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS (“TERMS OF SERVICE”).  IF YOU DO NOT AGREE TO ALL THE TERMS HEREIN, YOU WILL NOT HAVE ACCESS TO THE SERVICES OR ANY PORTION THEREOF.  VISUALIZE HEALTH’S PROVISION OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS OF SERVICE TO THE EXCLUSION OF ANY OTHER TERM, INCLUDING WITHOUT LIMITATION, TERMS ON ANY PURCHASE ORDER, EXCEPT THE ORDER FORM AS SET FORTH HEREIN.

Visualize Health may revise these Terms of Service at its discretion, including, but not limited to, any of the policies which may be applicable to the use of the Services.  Visualize Health will issue such revisions in writing to You, and Your written consent will be required prior to continued use of the Services.    

Visualize Health may add to its Services (“Additions”) and the use of such Additions will be subject to the Terms of Service.  If You use any of the Services, You agree to be bound by the Terms of Service with respect to the Services and any Additions.           

SUBSCRIPTIONS         

Visualize Health will make the Services available to You at a certain subscription level (“Subscription”) based on the Visualize Health modules and the number of users You select.  The applicable charges, rates and fees (“Fees”) Visualize Health will charge for Your Subscription are set forth in a separate signed Order Form between You and Visualize Health.  Such Order Form must be provided by Visualize Health, signed by You, and approved in writing by Visualize Health before having effect.

Subscription Term.      Your Subscription commences on the start date specified in the applicable Order Form and will continue in effect of for one (1) year from such date (“Subscription Period”).  Your Subscription will automatically renew at the then current Subscription Fees for successive one (1) year periods.  Visualize Health does not prorate for partial periods.  Once an annual period has commenced, You will be obligated for the fees for the entire year period.  All Fees You incur for use of the Services are (i) payable in U.S Dollars and (ii) based  on the Subscription purchased regardless of actual usage. 

 

Invoicing and Payment.  Fees will be billed monthly.  You may pay such Fees via ACH funds transfer, or Visualize Health may, at its sole discretion, elect to accept Your credit card for payment.  ACH withdrawal will occur in advance each month for the subsequent month of service during the Subscription Period.  If You have provided Visualize Health with Your credit card for payment, and Visualize Health has accepted this method of payment, all Fees that you incur for use of the Services will be applied on a monthly basis on the same date each month to the credit card number You provide to Visualize Health.  Your provision to Visualize Health of Your credit card information will serve as Your authorization to Visualize Health to charge Your credit card.  You are responsible for providing and updating all credit card information required for Visualize Health to apply valid charges to the card.  Visualize Health may take commercially reasonable actions to validate Your card.  Should the credit card number expire, or should Visualize Health otherwise be unable to debit valid charges to the credit card number You provided, Visualize Health may immediately        and without notice withdraw Your access to the       Services.         

Notices.           By using the Services, You consent to receiving electronic communications from Visualize Health.  These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Services.  You   agree that any notices, agreements, disclosures or communications of information that we send You electronically will satisfy any notice and legal communication requirements, including that such communications be in writing. 

Upgrades.        If You choose to upgrade Your Subscriptions by adding Visualize Health modules or users, the Fees charged to you may change.  Your ACH withdrawal or credit card charge will be increased in accordance with the new rate applicable to your new Subscription plan on the next regular billing date following the upgrade as set forth in a separate Order Form signed by You.       

Past Due Charges.       If any payments or credit card charges are not received from You by Visualize Health by the due date, then at Visualize Health’s discretion, (a) such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Visualize Health may condition future Subscription renewals and purchases on shorter or alternate payment terms.  In the event of a payment default, under these Terms of Service, You will reimburse Visualize Health for all collection costs, including reasonable attorney’s fees incurred in connection with collecting any payments, together with costs, in addition to the amount due.

Suspension of  Service.           If any amount owing by You  under these Terms of Service or any  Master Services Agreement (“MSA”) for use of the Services is thirty (30) or more days past due, or, in the event of credit card charges, if the amount You have authorized to charge is one (1) day past due, Visualize Health may, without limiting its other rights and remedies, accelerate Your unpaid fee obligations under any such agreements so that all outstanding obligations for the current term become immediately due and payable.  Visualize Health will also have the right to suspend Your Subscription or Services until such amounts are paid in full.  Visualize Health may delete Your saved data from the Services immediately upon suspension, and this information may not be recoverable following suspension.        

Taxes.  Unless otherwise stated, Fees do not include any taxes, levies, duties or similar government assessments of any nature, including but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (“Taxes”).  You are responsible for paying all Taxes associated with purchases made hereunder.  If Visualize Health has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph,            You will reimburse Visualize Health the appropriate amount unless You     provide Visualize Health with a valid tax exemption certificate authorized by the applicable taxing authority.  For clarity, Visualize Health is solely responsible for taxes assessed against it based on its income, property or employees.     

Changes to Subscription Fees.            Except as otherwise provided in a separate executed agreement between You and Visualize Health, Visualize Health may change the prices of any or all Subscription plans upon thirty (30) days’ written notice to You.  Such notice may be provided by posting the changes to (www.VisualizeHealth.com/plans).  Visualize Health will not be liable to You or to any third party for any modifications, price changes or suspension or discontinuation of the Services.

ACCOUNT, PASSWORD, AND  SECURITY       

You are solely  responsible for the protection of Your passwords, and You take full responsibility for the use of Your accounts associated with Your Subscription.  You are solely responsible for any and all activities that occur under Your account.  You agree to notify Visualize Health immediately upon learning of any unauthorized use of Your account or any other breach of security.  Visualize Health has the right to log into the Services under an administrative account in order to maintain or improve service, including to provide You with technical assistance.  You acknowledge and consent to such access.    

CANCELLATION          

You may cancel Your Subscription at any time by sending us written notice to of Your desire to close Your Subscription.  Such notice must be sent to P.O. Box 1394, Franklin, TN 37065.  You are solely responsible for properly canceling Your Subscription, and an email or phone request to cancel will not be considered effective or proper notice of cancellation.  Visualize Health will cancel Your Subscription upon receipt of Your written notice of account closure.  Visualize Health may delete all of Your saved data and/or Submissions from the Services upon cancellation, and this information may not be recoverable.  If You cancel Your Subscription before the end of a Subscription Period, all Fees that would have owed for the remainder of the term will become immediately due and payable, and You agree to pay such Fees.  There will be no refunds of any prepaid fees, regardless of Subscription cancellation. 

USAGERESTRICTIONS

“Content” includes, without   limitation, any intellectual property, information or data, text, software, scripts, graphics, images and interactive features provided by Visualize Health or its partners through the Services (as defined below).  The Services and Content provided are for Your internal business use only.  For the avoidance of doubt, You agree You will not use any automated data mining tools or techniques on or in connection with the Services or reformulate any copies of the Content for use in commercial products or services or for general resale or distribution.  You will comply with all applicable laws and regulations in Your use of and access to the Services and Content.   You agree not to use the Services for any purpose that is unlawful or prohibited by these Terms of Service.  You agree to abide by all applicable local, state, national and international laws and regulations.  You          shall not use any robot, spider, scraper or other automated means to access the Services for any purpose.  Additionally, You will not: (i) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Site; or (ii) bypass any measures Visualize Health uses to prevent or restrict access to the Services.               

CONTENT       

Unless  otherwise expressly noted on the Services, all rights, title and interest in and to the Services, including all related intellectual property rights, are and will remain with Visualize Health.  You have no right, license or authorization with respect to any of the Services except as expressly set forth herein.  All other rights in and to the Services are expressly reserved by Visualize Health.  You agree that the Services contain Content specifically provided by Visualize Health or its partners and that Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws.  Except as expressly permitted in these Terms of Service, You will not nor will you allow any third party to (i) copy, modify, adapt, translate or otherwise create derivate works of the Services or Content; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover          the source code of the Services; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Services; (iv) remove any proprietary notices or         labels placed by the Services;or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Services.

FEEDBACK      

Any reports, and any other materials, information, ideas, concepts, feedback and know-how provided by You to Visualize Health concerning the Services (“Evaluations”) will be the property of Visualize Health.  You agree to assign, and hereby assign all right, title and interest worldwide in the Evaluations and the related intellectual property rights to Visualize Health and agree to assist, at Visualize Health’s expense, in perfecting and enforcing such rights. 

PROVISION OF SERVICES        

Visualize Health may terminate Your access to all or any part of the Services at any time if You breach any of these Terms of Service, effective immediately. 

Visualize Health will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for:  (a) planned downtime, maintenance activities and efforts to maintain session control or (b) any unavailability caused by circumstances beyond Visualize Health’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Visualize Health employees), or Internet service provider failures or delays.         

Visualize Health may,  at any time, without notice or liability, restrict the use of the Services, suspend the Services or limit their availability in order to perform maintenance activities and to maintain session control or to protect against injury to person or property or to enforce these Terms of Service.                   

Visualize Health’s team automatically measures and monitors network performance.  Visualize Health does not share information collected for the purpose of network or computer performance monitoring or for providing customized technical support outside of Visualize Health or its authorized vendors, contractors and agents.                       

CONFIDENTIALITY      

You may obtain access via the Services to certain confidential information of Visualize Health, including without limitation, technology, know-how, contractual, product, program, pricing, marketing and other proprietary information that should reasonably be understood as confidential (“Confidential Information”).  You must hold Confidential Information in strict confidence.  Title to Confidential Information remains with Visualize Health.        

Your obligations regarding Confidential Information expire five (5) years after the date of disclosure.  Upon termination of the Terms of Service or upon Visualize Health’s written request, You must cease use of Confidential Information and return or destroy it.    

This Confidentiality provision will not apply with respect to Confidential Information to the extent that You can establish by legally sufficient evidence: (a) You possessed such Confidential Information prior to Your receipt from Visualize Health, without an obligation to maintain its confidentiality; (b) such Confidential Information is or becomes generally known to the public through no act or omission by You, or otherwise without violation of the Terms;          (c) You obtained such Confidential Information from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) You independently developed substantially similar information without the use of the Confidential Information and without the participation of individuals who have had access to it, or (e) You are required to disclose such Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law, but only after prior notice to Visualize Health adequate to afford Visualize Health the opportunity to object to the disclosure. 

WARRANTIES 

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:   

THE USE OF THE SERVICES IS AT YOUR OWN RISK, AND YOU ACKNOWLEDGE AND AGREE THAT THE SITE, CONTENT AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THESE TERMS OF SERVICE, VISUALIZE HEALTH, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENT, SUBSIDIARIES, AGENTS, AFFILIATES, AND THIRD PARTY LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS FOR THE SITE, CONTENT, AND SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.     

  1. VISUALIZE HEALTH DOES NOT WARRANT THAT (i) THE SERVICES WILL MEET YOUR

REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE, AND (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

  1. b) VISUALIZE HEALTH HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF YOUR DATA.

LIMITATION OF LIABILITY       

YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL VISUALIZE HEALTH (OR      ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENT, SUBSIDIARIES, AGENTS OR AFFILIATES) OR ITS          THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS, BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT 

LIMITATION, LOST PROFITS, LOSS OF REVENUE, OR LOSS OF DATA, REGARDLESS OF THE TYPE     OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR            STRICT LIABILITY, EVEN IF VISUALIZE        HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.  

WITHOUT LIMITING THE FOREGOING, THE CUMULATIVE LIABILITY OF VISUALIZE HEALTH FOR ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, WILL NOT EXCEED THE AMOUNT PAID BY YOU TO VISUALIZE HEALTH FOR THE SERVICES IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.     

YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS),

WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY, THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY.       

INDEMNIFICATION     

You agree to defend, indemnify and hold harmless Visualize Health from and against all liabilities, costs and expenses, including reasonable attorney’s fees, related to or arising from:    (a) any violation of applicable laws, regulations or these Terms of Service by You; (b) the use of the Services by You; (c) negligent acts, errors, or omissions by You; (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with these Terms of Service, except to the extent that such liabilities arise from the active negligence or willful misconduct of Visualize Health; or (e)         third   party claims for infringement of any intellectual property rights arising from Your Submissions           or Your use of the Services or Site.   

MISCELLANEOUS        

All obligations of the parties under these Terms of Service, which, by their nature, would continue beyond the termination, cancellation or expiration of these Terms of Service will survive such termination, cancellation or expiration. 

You shall not assign or otherwise transfer, these Terms of Service in whole or in part, and any attempt to do so shall be void.  Visualize Health may assign all or any part of these Terms of Service without notice, and You agree to make all subsequent payments as directed.  Assignment includes a merger or change of control.       

You and Visualize Health agree that Your use of the Services and these Terms of Service will be governed by the substantive laws of the State of Tennessee without reference to its principles of conflicts of laws.  The parties agree that the Uniform Computer Information Transactions Act (UCITA) is hereby excluded from application to these Terms of Service.  YOU AND VISUALIZE       HEALTH CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT   LOCATED IN WILLIAMSON COUNTY, TENNESSEE FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE OR TO THE SERVICES.  Except as otherwise required by law, including Tennessee laws relating to consumer transactions, any cause of action or claim You may have with respect to the Services must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.    

Visualize Health’s failure at any time to insist upon strict compliance with any of the provisions of these Terms of Service in any instance shall not be construed to be a waiver of such terms in the future.  If any provision of these Terms of Service is determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.  Visualize Health makes            no representation that the Services are appropriate or available for use in locations outside of the United States of America, and accessing the Services is prohibited from territories where such Services are illegal.  If you access the Services from other locations, You do so at Your own initiative and are responsible for compliance with local laws.         

These Terms of Service, including the Privacy Policy and all other policies posted on the Site, which are fully incorporated into these Terms of Service by reference, constitute the entire agreement between You and Visualize Health with respect to the subject matter hereto and supersede any and all prior or contemporaneous agreements, whether written or oral.    Notwithstanding the foregoing, if You have entered into an MSA with Visualize Health, and there is any inconsistency between the MSA and these Terms of Service, then these Terms of Service control.  Any changes    by You to these Terms of Service without Visualize Health’s written consent are void.      

All terms and conditions will be subject to the Order Form and Business Associate            Agreement that accompany this Software License Agreement.    

Visualize Health, LLC                                      

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