PLEASE READ THIS AGREEMENT CAREFULLY.
These terms and conditions (“Terms and Conditions”) apply to a person’s or entity’s access to and utilization of the MissionDiabetes services (the “Services”). As used in these Terms and Conditions, “we” (and variations such as “us” and “our”) means Mission Diabetes, LLC., and “you” (and variations such as “your”) means you and any organization or entity on whose behalf you are accepting these Terms and Conditions or utilizing the Services. THIS IS A LEGAL AND BINDING CONTRACT. YOU SHOULD PRINT OUT AND SAVE THESE TERMS AND CONDITIONS FOR FUTURE REFERENCE.
BY INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS, OR BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. If you do not agree to these Terms and Conditions, do not use or access the Services.
In the event you and we have entered into a separate written contract with terms and conditions that expressly reference and supersede these Terms and Conditions for the Services, such contract shall supersede these Terms and Conditions, and these Terms and Conditions shall be of no force or effect with respect to the subject matter hereof.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Content” means any content, data, text, images, video or other material recorded, added, created or uploaded by you (including any User) to or through the use of the Services.
“User” means any individual authorized by you to use the Services and who has received an individual password and account for use of the Services from us.
2. Mission Diabetes, LLC software services.
2.1 Provision of Software Subscription Services.
Subject to your compliance with these Terms and Conditions, we shall make the subscription software services available to you and your Users pursuant to these Terms and Conditions. You may subscribe to our Software Subscription Services subject to the terms of these Terms and Conditions for use by any of your authorized Affiliates, so long as your Affiliates are authorized by us in written form. You shall be responsible for your Affiliates’ compliance with the terms of these Terms and Conditions.
2.2 Subscription Fees.
You must pay the applicable subscription fees on a annual basis in advance. Subscription fees are non-refundable and non-creditable after the guarantee period has expired. In the event the subscription fees are raised during any calendar month, we will notify you of such increase and the subscription fees for such increased storage level will be due as part of on-going payments.
2.3 Our Responsibilities.
For so long as you are current on your subscription payments for the Services, we will: (i) use commercially reasonable efforts to make Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which we will give at least 8 hours notice via the Services and which we will schedule to the extent practicable during the weekend hours from 6 p.m. Eastern time Friday to 3 a.m. Eastern time Monday), or (b) any unavailability caused by circumstances beyond our 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 of our employees), or Internet service provider failures or delays. For so long as you are current on your subscription payments for the Services, we will provide to you the customer support specified in the support policies in effect at the time the support services are rendered.
2.4 Restrictions on You.
You shall not (i) create derivative works based on the subscription Services, (ii) copy, frame or mirror any part or content of the subscription Services, or (iii) access the subscription Services in order to build a competitive diabetes related product or services or copy any MissionDiabetes software features, functions or graphics of the Services. You are responsible for your cellular network and any connections to our subscription Services.
We warrant that (i) the Subscription Services will perform materially in accordance with our then-current online user documentation, and (ii) the functionality of the subscription Services will not be materially decreased during the period for which you have timely met your payment obligations. For any breach of either such warranty, your sole and exclusive remedy shall be for us to use commercially reasonable efforts to promptly remedy such error, or for you to terminate these Terms and Conditions and receive a refund of any prepaid fees covering any period for which the subscription Services have not yet been rendered.
2.6 Deletion of Customer Content. Upon written request from you, we will delete all Customer Content in our systems.
3. YOUR COMPLIANCE AND CONTENT.
3.1 Your Obligations.
You shall (i) be responsible for Users’ compliance with these Terms and Conditions, (ii) be solely responsible for the accuracy, integrity and legality of Customer Content and of the means by which you or your Users acquire or create Customer Content, and (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Customer Content or Services, (iv) use the Services in accordance with applicable laws and government regulations. You shall not (i) make the Subscription Services available to any third party, (ii) sell, resell, rent, lease, license, transfer, or distribute the Services, or (iii) use the subscription Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material.
3.2 Content Responsibility.
You acknowledge and agree that we do not monitor or police the Customer Content, including any content of communications or data transmitted or stored through use of the subscription Services. You shall use the subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. You agree not to load into the Services any content or data that violates the rights of others. We reserve the right, but have no obligation, to delete, move or edit any Customer Content that we may determine, in our sole discretion, violates these Terms and Conditions or is otherwise inappropriate.
3.3 Your Security.
You agree to maintain all security regarding you and your Users’ account ID, password, and connectivity with the Services. If any account ID or password is stolen, or otherwise compromised, and used for malicious purposes, you agree to immediately notify us and you will be responsible for all content transmitted, deleted or modified using the stolen account information.
3.4 Third Party Software Applications.
Any exchange of Customer Content between you and any third party or third party application is solely your responsibility. We do not warrant or support third-party products or services, unless we otherwise expressly agree.
4.1 Payment Terms.
You shall pay in advance all fees for Subscription Services ordered. If you no longer wish to continue just terminate your subscription and it will not continue past subscription already paid.
Unless otherwise stated, fees and payments do not include any taxes, levies, duties or similar governmental assessments of any nature, including without limitation value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are responsible for taxes assessable against us based on our income, property and employees.
5. Proprietary rights.
5.1 Reserved Rights.
Subject to the limited rights expressly granted hereunder, we and our licensors reserve all intellectual property rights in and to the Subscription Services, and each of its components and software.
We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the subscription Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including you or your Users, relating to the operation or features of the subscription Services.
5.3 Federal Government End Use Provisions.
We provide the subscription Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and rights related to the subscription Service include only those rights customarily provided to the public as defined in these Terms and Conditions. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE AND OUR LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. You acknowledge that WE do not control the transfer of data over telecommunications facilities, including the Internet. WE do not warrant secure operation of the Services or that WE will be able to prevent third party disruptions of the subscription Services. You acknowledge further that the subscription Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. WE ARE not responsible for any delays, delivery failures, or other damage resulting from such problems OR FOR THE RESULTS OBTAINED THROUGH THE USE OF THE SUBSCRIPTION SERVICES.
You agree to defend us and our Affiliates and distributors and indemnify us and our Affiliates and distributors from and against any damages finally awarded in any legal action or proceeding brought by a third party against us or our Affiliates to the extent that such action is based on (i) a claim that the Customer Content or your (or your Affiliates’ or Users’) use of the Subscription Services is in violation of these Terms and Conditions, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, (ii) your (or your Affiliates’ or Users’) negligence or misconduct or (iii) any deletion or transfer of Customer Content by you (or your Affiliates or Users), or by us in accordance with these Terms and Conditions or your (or your Affiliates’ or Users’) instructions.
8.1 Definition of Confidential Information.
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2 Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and Conditions, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with these Terms and Conditions and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3 Protection of Customer Content.
Without limiting the above, we shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Content. We shall not (a) modify Customer Content, (b) disclose Customer Content except as compelled by law in accordance with the "Compelled Disclosure" section below or as expressly permitted in writing by you, or (c) access Customer Content except to provide the Subscription Services under these Terms and Conditions and prevent or address service or technical problems, or at your request in connection with your support matters.
8.4 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8.5 Health Information Privacy.
9. Limitation of liability.
9.1 Limitation of Liability.
EXCEPT FOR INDEMNIFICATION OBLIGATIONS, A BREACH OF CONFIDENTIALITY OBLIGATIONS OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY'S (OR IN OUR CASE, OUR LICENSORS’ AND DISTRIBUTORS’) LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $100,000 OR THE FEES PAID BY YOU TO US UNDER THESE TERMS AND CONDITIONS IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS FOR FEES UNDER THESE TERMS AND CONDITIONS.
9.2 Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY (OR IN OUR CASE, OUR LICENSORS AND DISTRIBUTORS) HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES HOWEVER CAUSED (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUES, DATA, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SUBSCRIPTION SERVICES INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SAME OR FOR ANY CONTENT, OR ANY INTERRUPTION IN THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Term of Agreement.
These Terms and Conditions shall commence on the Effective Date and shall continue in effect until terminated in accordance with this Section.
10.2 Termination for Convenience.
You may terminate these Terms and Conditions at any time for any reason upon thirty (30) days prior written notice. We may terminate these Terms and Conditions at any time for any reason upon six (6) months prior written notice.
10.3 Termination for Breach.
If either party materially breaches any term of these Terms and Conditions, and such breach is not cured within thirty (30) calendar days after written notice thereof is given by the other party, then the non-breaching party may, by giving written notice thereof to the other Party, terminate these Terms and Conditions as of the date specified in such notice of termination.
10.4 Suspension of Subscription Services.
If you breach any term related to the Subscription Services, including a failure to make a payment, and such breach is not cured within thirty (30) calendar days after written notice thereof by us, we may suspend Subscription Services to you. If you do not comply with any applicable laws or regulations in the use of the Services, we may immediately suspend Subscription Services to you. This provision shall be in addition to any other of our remedies.
10.5 Effect of Termination.
Any remedies for breach, rights to accrued payments (and penalties thereon) and Sections 1 (Definitions), 5 (Proprietary Rights), 6 (Disclaimer), 7 (Indemnification), 8 (Confidentiality), 9 (Limitation of Liability), 10.5 (Effect of Termination) and 11 (Miscellaneous) shall survive the termination of these Terms and Conditions. We shall have no obligation to store any Customer Content after the date that is sixty (60) calendar days following the termination date. We will not be liable to you for any claims or damages of any kind arising out of any expiration or termination of these Terms and Conditions.
11.1 Relationship of the Parties.
The parties are independent contractors. These Terms and Conditions does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries.
These Terms and Conditions is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party.
Except as otherwise specified in these Terms and Conditions, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv), except for notices of termination or an indemnifiable claim ("Legal Notices"), the first business day after sending by email. Notices to us shall be addressed to: https://www.missiondiabetes.com/contact_us, Attention: Contracts Administration. All notices to you shall be addressed as specified on your order information. A party may change its address for notices at any time by providing notice of such change to the other party.
11.4 Waivers and Severability.
No failure or delay by either party in exercising any right under these Terms and Conditions shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms and Conditions shall remain in effect.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign these Terms and Conditions in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
11.6 Governing Law/Venue.
These Terms and Conditions, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Georgia without regard to conflicts of laws rules. The parties agree that this contract is not a contract for the sale of goods; therefore, these Terms and Conditions shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any references to the Uniform Computer Information Transactions Act or the United Nations Convention on the International Sale of Goods. The sole jurisdiction and venue for actions related to the subject matter of these Terms and Conditions shall be the state and US federal courts located in Atlanta, Georgia. Notwithstanding anything herein, either party may seek injunctive relief and the enforcement of judgments in any court of competent jurisdiction, no matter where located. The prevailing party in any action to enforce or interpret these Terms and Conditions shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees.
11.7 Entire Agreement.
These Terms and Conditions, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Terms and Conditions shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or in any other order documentation shall be incorporated into or form any part of these Terms and Conditions, and all such terms or conditions shall be null and void.
Except as mutually agreed, or as may otherwise be required by law or regulation, or in connection with any judicial or other proceeding the parties or these Terms and Conditions, neither party shall make any public announcement, directly or indirectly, concerning the existence or terms of these Terms and Conditions or the subject matter hereof, except that we may use your name in client lists.