Meva Labs, Inc. (“Meva Labs, Inc”, “we”, “us” or “our”) provides marketing software and services for healthcare providers (the “Service”). The Order Form (the “Order Form”) sets forth the Service being purchased by Peter Yelizar (“you”, “your” or “Client”), the costs for such Service, and any other relevant details.
These terms of service (the “Terms”) are incorporated by reference into and made a part of any Order Form and govern the relationship between you and Meva Labs, Inc. All Order Forms are subject to acceptance by Meva Labs, Inc, in its sole discretion. The Order Form, the Terms, and any documents or links referenced in such documents are together referred to as the “Agreement”.
If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to these Terms, (ii) you have read and understand these Terms, and (iii) you agree, on behalf of the Client, to these Terms.
PLEASE READ THE FOLLOWING TERMS CAREFULLY. Except as otherwise provided in Section 13 (Dispute Resolution and Arbitration), these Terms provide that all disputes between you and Meva Labs, Inc will be resolved by BINDING ARBITRATION AND YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights. Except as otherwise provided in Section 13 (Dispute Resolution and Arbitration), your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as part of a class action. Please review Section 13 (Dispute Resolution and Arbitration) below for the details regarding your agreement to arbitrate disputes with Meva Labs, Inc.
1.Elements of Service
The Service includes, but is not necessarily limited to, the development of a cloud-based provider website (“Provider Website”), and the provision of cloud-based tools and services, including but not limited to an online booking tool, call tracking, reputation management, profile syndication & management, analytics dashboard, and general online local marketing services (collectively, the “Marketing Software”)
Meva Labs, Inc will develop a cloud-based Provider Website for Client. Such Provider Website will integrate elements of the Marketing Software, including but not limited to the Meva Labs, Inc online booking tool. Client may, but is not required to, submit Content (as defined below) for inclusion on the Provider Website; any such Content submitted by Client and used by Meva Labs, Inc is subject to Section 3 (Content) and Section 4 (Ownership) below.
Meva Labs, Inc will provide the Marketing Software indicated on the applicable Order Form. Where applicable, Meva Labs, Inc will make the dashboard element of the Marketing Software (the “Dashboard”) available to Client in accordance with these Terms and any other Meva Labs, Inc rules and policies then in effect. The Dashboard allows Client to set up an account and password to access the Dashboard. Client may authorize employees or subcontractors to use the Dashboard on behalf of Client (each, a “User”); such Users are subject to these Terms, and Client agrees to be responsible for the actions of all Users who receive authorization to use the Service, including but not limited to their access to the Dashboard.
Client will not, and will not permit or authorize third parties to: (a) rent, lease, resell or otherwise permit unauthorized third parties to access or use the Service; (b) reverse engineer, reverse assemble or otherwise attempt to discover the source code for any software made available as part of the Service; or (c) circumvent or disable any security or other technological features or measures of the Service.
2.Responsibilities of the Parties
As part of the Service, Meva Labs, Inc may perform or assist in performing a function or activity on Client’s behalf that involves the use and disclosure of Protected Health Information (as defined in 45 C.F.R. 164.501; hereinafter, “PHI”). The parties hereto shall use or disclose such PHI as required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (the “Security Rule”) promulgated thereunder, and the Health Information Technology for Economic and Clinical Health Act (Division A, Title XIII and Division B, Title IV, of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) (the “HITECH Act”). Capitalized terms used but not otherwise defined in this Section 2 shall have the same meaning given to such terms in HIPAA, the HITECH Act, or any implementing regulations promulgated thereunder, including but not limited to the Privacy Rule and the Security Rule.
You (the “Covered Entity,” as referred to in the Business Associate Agreement) hereby agree that you have read and agree to be bound by the terms of the Business Associate Agreement Meva Labs, Inc (the “Business Associate,” as referred to in the Business Associate Agreement), agrees to be bound by the terms of the Business Associate Agreement. The parties hereto each agree to perform their respective obligations as enumerated therein.
i.Client may provide content to Meva Labs, Inc for use in Meva Labs, Inc’ provision of the Service, including but not limited to photos, images, data, text, and other types of works (“Content”). Client retains copyright and any other proprietary rights that Client may hold in the Content that Client provides to Meva Labs, Inc. By providing Content, Client hereby grants Meva Labs, Inc a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Client’s Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed).
ii.Client is solely responsible for any Content that Client provides, and for the consequences of posting or publishing such Content. By providing Content, Client affirms, represents, and warrants that:
Client will retain exclusive ownership of all rights, title and interest in and to all Content which Client provides to Meva Labs, Inc for the provision of the Services, subject to the rights granted to Meva Labs, Inc herein. Upon termination or expiration of the Agreement, Client will own solely the domain name of the Provider Website; if the domain name was purchased and registered by Meva Labs, Inc, Meva Labs, Inc will take reasonable measures to assign the domain name to Client upon
ii.Meva Labs, Inc
Meva Labs, Inc will retain exclusive ownership of all rights, title and interest in the Marketing Software (including, without limitation, any modifications, updates and developments provided hereunder), as well as any Content supplied by Meva Labs, Inc in the provision of the Service, and any visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and any other elements of the Service, subject to the licenses granted herein.
In connection with Client’s use of the Service and pursuant to Meva Labs, Inc’ acceptance of the Order Form, Client will pay to Meva Labs, Inc the applicable fees set forth in the Order Form. Meva Labs, Inc reserves the right to change any of the fees at any time, provided that such changes will not take effect until a new Order Form has been executed and delivered to Meva Labs, Inc by you. All payments required by these Terms exclude all sales, value-added, use, or other taxes, all of which Client will pay in full, except for taxes based on Meva Labs, Inc’ net income.
Each party will provide the other with reasonable cooperation, assistance, information and access as may be necessary to initiate Client’s use of the Service. Meva Labs, Inc will provide non-refundable implementation services to Customer to the extent set forth in the Order Form.
There are three options regarding billing subscriptions:
Meva Labs, Inc may from time to time, in its sole discretion, provide special promotions or discounts. If Meva Labs, Inc offers any special promotions or discounts that provide you with credits or other incentives in connection with the Service (“Promotional Credits”), and you cancel the Service prior to completion of the Initial Term (as defined below) (other than for cause, as set forth below in Section 6 vi.), you will be required to repay to Meva Labs, Inc the full amount of any corresponding discounts.
iv.Manner of Payment
You will pay for all amounts payable under this Agreement either by credit card (the “Client Card”), by electronic debit from your bank account (“ACH”), or such other form of payment as Meva Labs, Inc may, in its sole discretion and with prior approval, permit (included but not limited to payment by check). You will be required to agree to the applicable payment authorization form(s), which also permit Meva Labs, Inc to recover any Promotional Credits (as set forth above) in the authorized manner. In the case of payment through ACH, no amounts owing are considered paid until the electronic debit has been received by Meva Labs, Inc’ bank.
v.Timing of Payment
Fees, as identified on the Order Form, are due as indicated on the Order Form and in accordance with Client’s billing subscription plan. Meva Labs, Inc will have the right to charge the Client Card or debit from your account through ACH for fees in accordance with these Terms. You understand and acknowledge that all amounts owed must be paid in advance and that if timely payment is not received, in addition to being in breach of your contractual obligations, the Service may be paused or terminated. Any amounts not paid by you when due will bear interest at the rate of 1.5% per month (or the highest rate permitted by law). You agree to pay all costs of collection, including attorney’s fees and costs and all other legal and collection expenses incurred by Meva Labs, Inc in connection with its enforcement of its rights under these Terms.
6.Term and Termination
This Agreement will continue for the period indicated on the applicable Order Form (the “Initial Term”).
Provided that Client has paid all fees due under this Agreement, this Agreement will automatically renew for successive one (1) year periods (“Renewal Term(s)”) unless either party provides notice of non-renewal in accordance with subsection iii. below. The Initial Term and any subsequent Renewal Term(s) may be collectively referred to as the “Term”.
iii.Notice of Non-Renewal
To prevent renewal of a subscription, you or we must give written notice of non-renewal and this written notice must be received no more than ninety (90) days but no less than sixty (60) days in advance of the end of the subscription then in effect. If you decide not to renew, you must send the notice of non-renewal by email to firstname.lastname@example.org. Any notice received with less than 60 days’ notice will result in auto-renewal of your subscription for an additional Renewal Term.
iv.Early Termination; Refunds
The Client can terminate the contract any time within the first 30 days after the website has been launched and marketing campaign started.
v.Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any portion or all of the Service ten (10) days after such notice. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If your Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Service.
vi.Termination for Cause
Either party will have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of Client’s failure to pay fees, which must be cured within ten (10) days after receipt of written notice from Meva Labs, Inc. Pursuant to the payment policies outlined in Section 5 (Fees), you understand and agree that you will not be entitled to any refunds of amounts already paid to Meva Labs, Inc unless you properly terminate the Agreement for cause per the terms of this Section.
vii.Effect of Termination
Upon the expiration or termination of this Agreement, Client’s rights to access and use the Service will terminate, provided that: (i) any and all payment obligations of Client under this Agreement outstanding as of the effective date of expiration or termination will survive; (ii) Meva Labs, Inc shall return or destroy all PHI received from you, or created or received by us on your behalf (including any PHI in the possession of Meva Labs, Inc’ subcontractors or agents), and otherwise comply with the termination provisions; (iii) where returning or destroying the PHI is infeasible, Meva Labs, Inc will provide notification to you of the conditions that make return or destruction infeasible, and upon mutual written agreement regarding such infeasibility, the protections of this Agreement will continue to apply to such PHI to limit further uses and disclosures of such PHI for so long as the PHI must be maintained; and (iv) the following provisions will survive: Sections 2, 3, 4, 5, 6 vii., and 8-14.
7.Hosting, Updates, and Privacy
You agree that Meva Labs, Inc may, during and after the Term of this Agreement, include your name (including any applicable trade name, trademark, service mark or logo) on Meva Labs, Inc’ client list, and in its marketing materials, sales presentations and any online directories that Meva Labs, Inc may, from time to time, publish.
Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business or practice, plans, technology, and products (“Confidential Information”). Each party will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
ii.Confidentiality of Agreement
Each party agrees that the terms and conditions, but not the existence, of this Agreement will be treated as the other’s Confidential Information; provided, however, that each party may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of the parties; (iv) in connection with the requirements of a public offering or securities filing; (v) in confidence, to its employees and agents and to its professional advisors such as accountants, banks and financing sources; (vi) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vii) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
i.Meva Labs, Inc Indemnity
Meva Labs, Inc will indemnify, defend and hold Client harmless from and against: (a) any third party claim brought against Client alleging that the Marketing Software or any Meva Labs, Inc-provided Content infringes any third party intellectual property or proprietary right, including without limitation, patent, copyright or trademark; and (b) any liability, claim, action, loss, cost, damage or expense (including reasonable fees of attorneys and experts) incurred or suffered by Client, to the extent that such liability, claim, action, loss, cost, damage, expense or fees are attributable to or incurred as a result of an unauthorized use or disclosure of PHI by Meva Labs, Inc or Meva Labs, Inc’ breach of this Agreement; provided that (i) Client promptly notifies Meva Labs, Inc in writing of such claim, (ii) provides assistance as reasonably requested by Meva Labs, Inc to defend or settle such claim and (iii) gives Meva Labs, Inc the exclusive authority to defend or settle such claim. Meva Labs, Inc will not enter into any settlement that requires Client to admit liability or pay money without Client’s prior written approval, which will not be unreasonably withheld or delayed. Meva Labs, Inc will have no liability or obligation under this Section 10 i. for any Content provided by Client.
Client will indemnify, defend and hold Meva Labs, Inc and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Meva Labs, Inc Indemnities”) harmless from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this Agreement or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including but not limited to any dispute arising from the sale, license, supply or provision of your goods or services. Client specifically agrees to indemnify the Meva Labs, Inc Indemnities as it relates to any claims against them related to the accessibility of the Provider Website to persons with disabilities, specifically those who are visually or hearing impaired. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
i.Mutual Representations and Warranties
Each party represents and warrants to the other that: (i) this Agreement has been duly entered into and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s entering into or performance of this Agreement; and (iii) the entering into and performance of this Agreement does not and will not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, Meva Labs, Inc MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AND Meva Labs, Inc EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Meva Labs, Inc DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. FROM TIME TO TIME, CLIENT MAY REQUEST THE ADDITION OF CERTAIN CODE AND/OR FUNCTIONALITIES TO BE ADDED TO CLIENT’S WEBSITE OR OTHER PLATFORM. Meva Labs, Inc SHALL NOT BE RESPONSIBLE FOR ENSURING THAT THE REQUESTED CODE AND/OR FUNCTIONALITIES COMPLY(IES) WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS PERTAINING TO CLIENT’S BUSINESS. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT CLIENT ALONE SHALL BE RESPONSIBLE FOR ENSURING THAT CLIENT’S WEBSITE AND SERVICE OFFERINGS, EVEN IF SUPPORTED BY Meva Labs, Inc, COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
Except as provided in subsection ii. below, any and all disputes, controversies, or claims arising out of or relating to the Service, this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in New Yor City, New York. The arbitrator shall apply the laws of the State of New York to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded as provided by the arbitrator.
Despite the provisions of this Section 13, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through an applicable federal, state, or local agency if that action is available; (c) seek emergency injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
iii.No Class Actions
EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Meva Labs, Inc agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the State or Federal Courts located in New Yor City, New York. All other claims shall be arbitrated in accordance with this Section 13.