TERMS OF SERVICE
These Terms of Service, together with any documents expressly incorporated herein by reference (collectively, this “Agreement”) govern use of Jellyfish Services and are entered into by and between Jellyfish Health, LLC a Delaware limited liability company, (collectively hereinafter referred to as “Jellyfish“)” and the party on whose behalf this Agreement is entered for the use of, or otherwise setting up, accessing or using, the Jellyfish Services (hereinafter referred to as “You” or “Client“), effective as of the earlier of Your registration, downloading of a Jellyfish application, first use of Jellyfish Services, or, in the event of a subscribing customer for Jellyfish Services, via execution of an order form (the “Effective Date“). “Jelly Fish Services” mean the Jellyfish products and services that You obtain from Jellyfish, and related websites, applications, services and mobile applications provided by Jellyfish, including without limitation, any software as a service or any professional services, in which these Terms of Service are posted or referenced
BY AGREEING TO THESE TERMS OF SERVICE, YOU hereby warrant and represent that the USER registering for access to, or otherwise accessing or using the Jellyfish Services has the full right and authority to BE BOUND BY THE TERMS OF this Agreement, and that YOU ARE fully aware of, understand, and agree to be bound by all the terms and conditions of this Agreement.
1.USE OF THE SERVICES.
1.1. Jellyfish Services. Subject to full and ongoing compliance with the terms and conditions of this Agreement, Jellyfish authorizes Client to access and use the Jellyfish Services for the integration of consumer-facing public display Client Properties pursuant to this Agreement. To the extent that Jellyfish makes the Jellyfish Services available for direct integration with Client’s web properties, Jellyfish grants to Client a personal, limited, revocable, non-transferable, non-sublicensable right to such integration without modification into those web properties that are owned or controlled by Client solely for such purpose.
1.2 Client Responsibilities. Client shall not allow any unauthorized access to or use of the Jellyfish Services (including, without limitation, by maintaining the confidentiality of all usernames, passwords, API keys, and similar access credentials), and Client will be solely liable to Jellyfish for any and all activity or use of the Jellyfish Services. Client will notify Jellyfish promptly of any unauthorized access or use. Client will use the Jellyfish Services only in accordance with the terms of this Agreement, the user guide made available by Jellyfish (as may be amended from time to time by Jellyfish), applicable privacy policies, applicable laws, government regulations, and third party contracts, including without limitation, any and all laws, regulations, and obligations relating to licensed medical services, privacy, publication, consumer protection, advertising, and industry self-regulatory guidelines or similar industry agreements or arrangements. Client shall not (i) sell, resell, rent or lease the Jellyfish Services, or make the Jellyfish Services available to any third party on a service bureau basis, (ii) use the Jellyfish Services to store or transmit malicious code, (iii) interfere with or disrupt the integrity or performance of the Jellyfish Services or third-party data contained therein, or (iv) attempt to gain unauthorized access to the Jellyfish Services or their related systems or networks. Client is responsible for moderating and controlling the content displayed as part of the Jellyfish Services. Client will maintain industry standard organizational and technical safeguards for end user data accessed or collected by Client through the Jellyfish Services. If Client requires the use of proprietary assets (e.g. fonts, images, videos, etc.), Client will provide Jellyfish with an appropriate license for such proprietary asset, or alternatively Jellyfish will directly procure a license for such proprietary asset and invoice Client (at cost) for such license. JELLYFISH EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY USER CONTENT, OR ANY COMPLIANCE WITH LAWS OR REGULATIONS GOVERNING HEALTH CARE OR HEALTH PROVIDERS. THE CONTENT, WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM JELLYFISH, IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. CUSTOMER’S OR ITS USERS’ USE OF THE CONTENT IS SOLELY AT CUSTOMER’S OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, DENTISTRY, NURSING, OR OTHER PROFESSIONAL HEALTH CARE ADVICE OF JELLYFISH, OR THE PROVISION OF MEDICAL CARE BY JELLYFISH.
1.3. Usage Limitations. The Jellyfish Services may be subject to other limitations and/or documentation and such limitations shall be deemed to be incorporated by reference into and made a part of this Agreement. Client will abide by any such limitations and Client will not attempt to exceed or circumvent such limitations. If Client exceeds, or Jellyfish reasonably believes that Client has circumvented any limitations, then Client’s ability to use the Jellyfish Services may be temporarily or permanently blocked or suspended and Client may be subject to overage charges.
1.4. Support Service. If Client purchased the Jellyfish Services from Jellyfish, Jellyfish will provide basic support services to Client, to address reported incidents of the Jellyfish Services not performing materially in accordance with applicable specifications, when used by Client in accordance with this Agreement and all applicable documentation in accordance with Jellyfish’s standard support procedures.
2.THIRD PARTY SERVICES.
2.1. Jellyfish Services. The Jellyfish Services may contain features designed to interoperate with third party applications, products or services (such as cloud-based services, web platforms, storage, and analytical services (“Third Party Services”). To use such features, Client may be required to obtain access to such Third Party Services, or Jellyfish may be required to obtain access to such Third Party Services on behalf of Client, from the providers of such Third Party Services and Client agrees to the terms and conditions on which such third party provider offers such Third Party Services. If Client chooses to use such features and Jellyfish is required to obtain access to Third Party Services on behalf of Client, Client authorizes Jellyfish to access the applicable Third Party Services on Client’s behalf and obtain, access, store, and use the data made available to Jellyfish by the Third Party Services in accordance with this Agreement. Client is solely responsible for compliance with the terms and conditions applicable to any Third Party Services accessed by or on behalf of Client in connection with the Jellyfish Services and will indemnify Jellyfish from any and all harm, damages, costs, and expenses incurred by Jellyfish in connection with a breach of the foregoing. Jellyfish shall not be responsible for any disclosure, modification or deletion of data resulting from any such access to such Third Party Services and their providers. If the provider of any such Third Party Service ceases to make the application available for interoperation with the corresponding feature of the Jellyfish Services on reasonable terms, Jellyfish may cease providing such features without entitling Client to any refund, credit, or other compensation.
2.2. End User Interactions. The Jellyfish Services may contain features that require an end user to interact with the Jellyfish Services through one or more Third Party Services, and to obtain access to such Third Party Services from their providers and agree to the terms and conditions on which such third party provider offers such services. Any acquisition or use of Third Party Services and any exchange of information between an end user and any third party is directly between the end users and the applicable third party, and any interaction between Client and end users is solely between Client and the end user. JELLYFISH EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY END USER INTERACTIONS WITH THE JELLYFISH SERVICES OR ANY THIRD PARTY SERVICES.
3.1. Reservation of Rights in Jellyfish Services. Jellyfish reserves all right, title and interest in and to the Jellyfish Services, including all related intellectual property rights. No rights are granted to Client other than as expressly set forth herein, whether by implication, estoppel, or otherwise. All enhancements, modifications, and derivative works made to the Jellyfish Services (collectively, the “Derivatives”), and all intellectual property rights therein, shall be owned by Jellyfish, whether or not such Derivatives are made at Client’s request or instruction, with the exception of any electronic data or information submitted, provided, or made available to Jellyfish by or on behalf of Client to the Jellyfish Services (“Client Data”) contained in the Derivatives which shall continue to be owned by Client. Client hereby irrevocably assigns to Jellyfish all right, title and interest in and to the Derivatives, including all intellectual property rights therein that may inure to Client or that Client is deemed to obtain pursuant to this Agreement.
3.2. Restrictions. Client shall not (i) modify or create derivate works based on the Jellyfish Services, (ii) reverse engineer the Jellyfish Services, or (iii) access the Jellyfish Services in order to (a) build a similar or competitive product or service to the Jellyfish Services or the Third Party Services, (b) carry out benchmarking of the Jellyfish Services, including by monitoring their availability, performance or functionality, or (c) copy any features, functions or graphics of the Jellyfish Services.
3.3. Client Data. As between the parties, Client owns the Client Data, and hereby grants Jellyfish a non-exclusive, royalty-free right to access and use Client Data (i) as may be reasonably necessary in connection with performing, providing, developing, enhancing, supporting, and maintaining the Jellyfish Services; and (ii) in connection with the creation of any information or data derived from Client Data or Client’s or its end users’ use of the Jellyfish Services (including, without limitation, metrics and analytics related to such use), which is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person, including as may be required to develop, deliver and provide ongoing innovation to the Jellyfish Services.
3.4. Suggestions. Client may, but is not obligated to, provide suggestions, enhancement requests, recommendations or other feedback provided by Client (“Suggestions“). Client hereby grants Jellyfish a royalty-free, worldwide, irrevocable, sublicensable, transferable, perpetual license to use, disclose, reproduce, license, distribute and exploit such Suggestions, and incorporate Suggestions into the Jellyfish Services and its other services, products, technologies, documentation or other development with no obligation to pay, attribute, license or to make available to, Client or any other person or entity.
4.LIMITED WARRANTY; DISCLAIMER.
4.1. Limited Warranty. Each party represents and warrants to the other party that it has validly entered into this Agreement and has the legal power to do so, and that it will comply with all applicable laws and regulations in connection with its performance. Client’s sole remedy for performance issues with respect to Jellyfish Services shall be any support services Jellyfish is obligated to provide in accordance with this Agreement.
4.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JELLYFISH, ITS AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, AGENTS, AND CONTRACTORS (THE “JELLYFISH PARTIES”) MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH OF THE JELLYFISH PARTIES SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION: THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, THAT THE USE OF THE SOFTWARE SERVICE OR THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE; OR WITH RESPECT TO ANY CUSTOMER DATA OR OTHER THIRD PARTY CONTENT THAT MAY BE ACCESSED, PROVIDED, OR MADE AVAILABLE; OR ANY THIRD PARTY SERVICES ACCESSED OR USED, IN CONNECTION WITH THE JELLYFISH SERVICES; AND HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT THERETO. JELLYFISH WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF JELLYFISH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT STRICT LIABILITY OR OTHERWISE.
4.3. Services. THE JELLYFISH PARTIES DO NOT WARRANT THAT THE JELLYFISH SERVICES WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE JELLYFISH SERVICES WILL BE COMPATIBLE WITH ANY OTHER SOFTWARE, HARDWARE, OR OTHER MATERIALS, THAT THE CUSTOMER CONTENT CAN OR MAY BE DISPLAYED BY THE CUSTOMER, OR THAT THE JELLYFISH SERVICES OR THE SERVERS THAT MAKE THE JELLYFISH SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND THE JELLYFISH PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT THERETO. CUSTOMER UNDERSTANDS AND AGREES THAT IF CUSTOMER USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS ANY THIRD PARTY SERVICES OR CONTENT OR DATA THEREIN, IT IS AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE USE OF JELLYFISH SERVICES. JELLYFISH HAS NO CONTROL OVER ANY THIRD PARTY SERVICES, AND THEREFORE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, LEGALITY, NATURE, AVAILABILITY, OR RELIABILITY OF THIRD PARTY SERVICES AVAILABLE IN CONNECTION WITH THE JELLYFISH SERVICES. JELLYFISH PROVIDES ACCESS TO THIRD PARTY SERVICES TO CUSTOMER ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK, REFERRAL, OR FEATURES ON THE JELLYFISH SERVICE TO THIRD PARTY SERVICES DOES NOT IMPLY JELLYFISH AFFILIATION, ENDORSEMENT, OR ADOPTION OF THE THIRD PARTY SERVICE OR ANY CONTENT OR DATA THEREIN. ACCESS AND USE OF THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION THE CONTENT, MATERIAL, PRODUCTS, AND SERVICES AVAILABLE ON OR THROUGH THIRD PARTY SERVICES AND IS SOLELY AT CUSTOMER’S OWN RISK. CUSTOMER IS SOLELY RESPONSIBLE FOR, AND THE JELLYFISH PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT TO, THE USE OR DISPLAY OF ANY HEALTH RELATED DATA OR CUSTOMER DATA, AND COMPLIANCE WITH ANY REGULATORY OBLIGATIONS RELATED THERETO.
5.1 Client shall indemnify, defend and hold Jellyfish, its Affiliates and each of their respective officers, directors, employees, agents, contractors and representatives (each, a “Jellyfish Indemnified Party” and collectively, the “Jellyfish Indemnified Parties”) harmless from and against any claim, liability, loss, costs, damages or other expenses (including but not limited to reasonable attorneys’ fees) (each, a “Loss” and collectively, “Losses”) incurred or suffered by any of them with respect to any breach of any of Client’s representations, warranties or obligations hereunder or any act or omission by Client or any of its authorized users or other personnel that results in a Loss. The Jellyfish Indemnified Parties shall have the right to engage their own counsel in connection with such matters and shall notify Client promptly in writing of any such claim or suit against any of the Jellyfish Indemnified Parties.
6.LIMITATION OF LIABILITY.
6.1. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE JELLYFISH PARTIES HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING AS A RESULT OF STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE JELLYFISH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
6.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY JELLYFISH PARTIES’ AGGREGATE TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THE APPLICABLE ORDER DURING THE ONE (1) MONTH PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
7.TERM AND TERMINATION.
7.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Client’s subscriptions or access to Jellyfish Services have expired or are terminated.
7.2. Term of Purchased Subscriptions. If applicable, subscriptions purchased by Client commence on the start date specified in the applicable Order and continue for the subscription term specified therein.
7.3. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1.2, 2.2, 3, 4, 5, 6, and 9.
8.MODIFICATIONS TO THE AGREEMENT.
8.1 Jellyfish reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. Client should check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies Client’s rights or obligations, Jellyfish will make reasonable efforts to notify Client of such change. Jellyfish may provide notice through a pop-up or banner within the Jellyfish Services, by sending an email to any address Client may have used to register for access, or through other similar mechanism. Additionally, if the changed Agreement materially modifies Client’s rights or obligations, Jellyfish may require Client to provide consent by accepting the changed Agreement. If Jellyfish requires Client’s acceptance of the changed Agreement, changes are effective only after Client’s acceptance. If Client does not accept the changed Agreement, Jellyfish may terminate Client’s access to and use of the Jellyfish Services. All other changes are effective upon the earlier of Client’s acceptance of the modified Agreement, Client’s use of the Jellyfish Services with actual knowledge of the change, or thirty (30) days following publication of the modified Agreement. Disputes arising under this Agreement will be resolved in accordance with the Agreement in effect at the time the dispute arose.
9.1. Relationship. The parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship. Neither party shall take any action or permit any action to be taken on its behalf which purports to be done on behalf of or in the name of the other party and shall have no power or authority to bind the other party to assume or create any obligation or responsibility express or implied on the other party’s behalf or in its name, nor shall such party represent to anyone that it has such power or authority.
9.2. Notices. All notices under this Agreement shall be in writing and shall be delivered to the address set forth in this Agreement, provided that Jellyfish may provide notices to Client via the email address provided at the time of registration for access.
9.3. Waiver and Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be interpreted to affect the original intent to the fullest extent possible, if at all, and the remaining provisions of this Agreement shall remain in full force and effect.
9.4. Assignment. Client may not assign any of its rights or obligations hereunder without the prior express written consent of Jellyfish. Jellyfish may assign this Agreement together with all rights and obligations hereunder, without restriction, including to a successor entity resulting from a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement, provided that Client provides written notice thereof to Jellyfish and the assignee assumes all obligations of Client hereunder and agrees in writing to comply with all of the terms and conditions of this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the laws of the State of Florida without application of conflicts of laws rules or principles. Any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for injunctive relief or other equitable remedies) will be submitted at the request of either party to binding arbitration. Arbitration will be conducted in Panama City, Florida, under the rules and procedures of JAMS. The parties will request that JAMS appoint a single arbitrator. Any claims for injunctive or other equitable relief shall be brought and heard in the state or federal courts located in Panama City, Florida, and Client consents to such venue and personal jurisdiction therein for any such proceedings. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
9.6. Force Majeure. Except for Client’s payment obligations hereunder, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, storms or other weather or natural events, embargo, riot, sabotage, terrorism, epidemic, pandemic, labor shortage or dispute or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, governmental act or failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to correct promptly such failure or delay in performance..
9.7. Integration. This Agreement as may be modified from time to time as set forth herein, as well as other documents or additional terms referenced herein, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement, including without limitation, any foreign language translation of this Agreement.
Last modified: February 18, 2016