HealthJay Terms of Service

Last Updated: November 12, 2020
 

These HealthJay Terms of Service constitute a legally binding agreement (the “Agreement”) by and between the undersigned identified within this sign-up page (“Customer”, “you”) and HealthJay Inc. (“HealthJay”) (each, a “party” and together, the “parties”). This Agreement sets forth the terms under which Customer may access and use the HealthJay Platform and the HJ Services (as defined below) to initiate and receive text, audio and video communication among care recipients, caregivers, families and friends.  These parties are given access to devices, apps and web portals to administer, manage, participate and view tele-communication activity in the HealthJay platform. Capitalized terms used herein shall have the meanings ascribed to them in this Agreement.

By entering into this Agreement, registering for a Customer Account (s), and/or by using or accessing the HJ Services, you expressly acknowledge and agree that you understand this Agreement and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE HEALTHJAY PLATFORM AND HJ SERVICES.

If you are registering for a Customer Account (s) or using the HJ Services on behalf of an organization, you are agreeing to this Agreement for that organization and representing and warranting to HealthJay that you have the authority to bind that organization to this Agreement (in which event, "you" and "your" will refer to that organization referred to herein as “Customer”).

If you use the HealthJay Platform or HJ Services in a country other than the United States of America, you agree that your use of the HealthJay Platform and HJ Services in that country will be subject to this Agreement and the applicable country-specific terms, if any.

1.        Definitions

  1. “Administrator(s)” means any agent authorized by Customer to serve as a Customer Account administrator.

  2. “Affiliate” is any entity or person that controls Customer, is controlled by Customer, or under common control with Customer, such as a subsidiary, parent company, or employee.

  3. “Auto Pay” means a central billing method which allows Charges (as defined in Section 6) to be submitted directly to Customer for payment via credit card or invoicing.

  4. “Member Profile” means an additional profile that Customer can create for a Member User or a Staff/Affiliate User within the JayPad and JayMobile Apps by using data within the Customer organization.

  5.  “HealthJay FlightDeck” means an online portal owned or operated by HealthJay, or access to the HealthJay API, that enables Customer to administer, manage, and view tele-communication activities directly concerning Customer Members.

  6. “HealthJay JayPad” means a tablet device and app owned and operated by HealthJay which provides care recipients, caregivers and family to stay connected, social and virtual activities.

  7. “HealthJay JayMobile” means a mobile app owned and operated by HealthJay which provides Staff/ Affiliate of Customer access to monitor and manage Care Recipients remotely among Care Circle members.

  8. “Customer Account” means a central HealthJay account and its related sub-accounts established for Customer in connection with its use of one or more HJ Services.

  9. “Customer Personnel” means any employees, agents, or contractors of Customer.

  10. “Customer Members” means a Member and Care Recipient in contract with Customer who uses or is scheduled to participate in HJ Services in connection with a Customer Account.

  11. “Customer Partners” means independent third-party person(s) authorized to use services on the HealthJay Platform in relation to a particular Customer Member. Customer Partners are not employees or agents of Customer. They can be families of Customer Members or parties providing social services to Customer Members. 

  12. “HJ Services” means HealthJay’s suite of enterprise and professional products and services, which provide Customers access to the HealthJay Platform for business purposes and include, without limitation, the HealthJay API, HealthJay FlightDeck, JayPad, JayMobile, JayCloud, JayBeep and any other products or services made available by HealthJay.

  13. “HealthJay API” means any application programming interface made available by HealthJay.

  14. “HealthJay App” means the HealthJay mobile applications including but not limited to JayPad App and JayMobile App.

  15. “HealthJay Platform” is a marketplace where Customer Members can be services by Customer, its Staff/ Affiliates and Partners and includes HealthJay’s technology platform, the HealthJay App, HealthJay’s software, websites, HealthJay API, other virtual properties owned or operated by HealthJay, as well as any upgrades or updates to any of the foregoing.

  16. “Request” means when a Customer Member submits a task request via the HealthJay Platform or HealthJay App to request attention.

  17. “Activity(s)” means the virtual activities that are provided by Customer using JayPad App or JayMobile App licensed to Customer and its Staff/ Affiliates and Partners.  Each Activity is created, managed and tracked in the HealthJay Platform. For the avoidance of doubt, HealthJay does not provide Activities; rather, HealthJay enables the management of activities among Customers, Staff/Affiliates, Partners and Members through the HealthJay Platform.

  18. “Participant(s)” means person(s) who join virtual activities set up by Customer or its Partners.

2.        HJ Services and Applicable Terms

  1. Care Recipients may use the JayPad tablet or App to socialize and participate in virtual activities. Caregivers may use the JayMobile App to monitor JayPad users and communicate with Care Recipients virtually. Care Providers may use the FlightDeck to administer and manage virtual activities of Customer organization. Usage of the HealthJay Platform is subject to the HealthJay Terms of Service (https://www.HealthJay.com/terms) and Privacy Policy (https://www.HealthJay.com/privacy). HealthJay hereby grants Customer a non-exclusive, non-transferrable, revocable, limited license to use the HealthJay Platform and HJ Services for the Term and in strict compliance with this Agreement and applicable law.  HealthJay reserves all rights not expressly granted to Customer under this Agreement. HealthJay may, in its sole discretion and at any time, cancel, modify, or add new products and services to the HJ Services by updating the description of the HJ Services on its website, including, but not limited to, www.HealthJay.com, and/or within the Customer Account. HealthJay will not be responsible for any loss of data or any other damages associated with such changes.

  2. HealthJay FlightDeck. HealthJay FlightDeck has the ability to (i) enable Customer to create, enroll, invite, host and track virtual activities in relation to JayPad users who are Customer Members; (ii) generate monthly reports to summarize tracked virtual activities; (iii) document services delivered and validated by JayMobile’s Electronic Visit Validation (EVV) features; (iv) create Care Circles and Social Circles for Customer Members; (v) send centralized messages to Customer Members, Customer Staff/ Affiliates and Partners. Customer can request an integration with the HealthJay API if condition is feasible.

  3. HealthJay JayPad. HealthJay JayPad tablet and App enables Customer Members to receive virtual activities and social engagement effortlessly. Customer Members can initiate or participate in audio and video calls, virtual appointments and activities, receive reminders and initiate requests from the App. Most of the virtual activities on the JayPad App are tracked on the HealthJay FlightDeck for reporting purposes. Customer Members using the JayPad App are supported by Customer Staff/ Affiliates in a Care Circle. HealthJay offers the JayPad tablet operating on Android. It is Customer’s sole discretion to purchase the JayPad tablet for Customer Members or to use other tablet devices in the market. JayPad App runs on IOS and Android operating systems. Customer acknowledges and agrees that Customer is responsible for policing, managing, regulating, overseeing, and supervising the use of Company’s issued HealthJay JayPad and JayMobile App licenses to prospective Members, Staff/Affiliates, or Partners. To set up a JayPad or JayMobile User Profile, Customer must at least provide User’s name. Any extra information for Profile Set-Up is at the discretion of Customer. Customer is responsible for User Database. 

  4. HealthJay JayMobile. HealthJay JayMobile is a mobile App for Customer Staff/ Affiliates to communicate with JayPad Users. Through JayMobile, Customer Staff/ Affiliates can initiate or receive audio and video calls from JayPad Users or other JayMobile Users. The App has a scanner-enabled EVV feature allowing scanning of QR codes from JayPad App to validate Customer Members’ participation in activities. The EVV is enabled for meal deliveries, ride pick-ups, ride drop-offs, in-center check-ins and check-outs, and home visit clock-ins and clock-outs.

  5. HealthJay API. If applicable, Customer’s use of the HealthJay API is further subject to HealthJay’s API terms as may be made available to Customer by HealthJay. 

  6. Third-Party Data Plan. HealthJay does not offer any cellular nor data services. Customer shall be solely liable for all use of cellular or data service plans of your choice. HealthJay can suggest any cellular or data services available. It is solely in the discretion of Customer to decide if and which cellular or data service plans to purchase. HealthJay offers JayPad tablets that can support LTE data services while other JayPad tablets are on WIFI. 

  7. Discounts or Promotions. If HealthJay chooses to provide Customer with any discounts or promotions, HealthJay does so at its own discretion and may terminate such discounts or promotions at any time without notice to Customer, unless agreed otherwise by the parties in a signed agreement. The Customer understands that if any changes are made to the initial order, including billing cycle changes, within twelve (12) months of date of sale that all promotional discounts will be forfeited. The Company will have the right to offset any of these additional costs against any monies due to the customer. 

  8. User Consent. Customer acknowledges that Customer is responsible for ensuring Users of JayPad tablet or App, or JayMobile App accept the terms of use as required. 

3.       Customer Account and Dashboard

  1. Customer Account.  To gain access to the HJ Services, Customer must create a Customer Account and provide true, accurate, current, and complete information as requested during the account creation process. Customer must also keep that information true, accurate, current, and complete throughout the Term. Customer is solely responsible for all use (whether or not authorized) of the HJ Services under the Customer Account, the acts and omissions of anyone that has access to such Customer Account, as well as all Charges (as defined in Section 6) generated under such Customer Account. Customer agrees to take all reasonable precautions to prevent unauthorized access to or use of the HJ Services and will notify HealthJay promptly upon the discovery of any known or suspected unauthorized or fraudulent activity occurring under the Customer Account. HealthJay will not be liable for any loss or damage arising from unauthorized or fraudulent use of the Customer Account, except to the extent caused by HealthJay’s breach of this Agreement. If applicable to Customer, Customer’s Staff / Affiliates may utilize the HJ Services pursuant to the terms of this Agreement, provided that the terms of this Agreement apply to such Staff / Affiliates. Customer and Customer’s Staff/ Affiliates shall be jointly and severally responsible for the acts and omissions of Customer’s Staff/ Affiliates in connection with their use of the HJ Services, including, but not limited to, breach of this Agreement. Any claim from Customer’s Staff/ Affiliates use of the HJ Services pursuant to this Agreement may only be brought against HealthJay by Customer on Customer’s Staff/ Affiliates’ behalf.  Additionally, HealthJay may bring claims for violation of this Agreement by Customer’s Staff/ Affiliates against such Staff, Affiliate, Customer, or all, at HealthJay’s sole discretion.

  2. FlightDeck.  In addition to accessing the HJ Services, Customer may use the FlightDeck to perform a variety of actions which may include (i) viewing, adding, and removing Customer Members from Customer Account; (ii) viewing virtual activities associated with Customer Account, including certain Customer Members’ Activity information; (iii) generating and preparing activity reports associated with Customer Accounts; (iv) viewing current, appointing new, and removing roles; and (v) setting certain preferences on Customer Members activity in connection with HJ Services.  HealthJay reserves the right to add, remove, and update features and functionality of the FlightDeck at any time and HealthJay will not be responsible for any loss of data or any other damages associated with such changes. 

  3. Customer Administrator. Customer must designate at least one (1) authorized agent to serve as the Administrator and will train the Administrator to access and use the HJ Services and will be HealthJay’s primary contact with Customer. Customer agrees to (i) maintain all FlightDeck login credentials in confidence; (ii) only permit the lead Administrator and Customer’s other authorized Administrators to access the FlightDeck; and (iii) update all information of the lead Administrator and other authorized Administrators to ensure that it is current, accurate, and complete. Customer shall limit access to all data within the Customer Account and the FlightDeck to only those Customer Personnel who have a need to access such data for legitimate business purposes related to managing and administering the HJ Services.

4.        No Medical Advice or Emergency Response

  1. The HJ Services does not provide any medical or other professional health care advice; nor is it intended to be used to assess health conditions or substitute for professional medical advice or relied up for diagnosis or treatment. The user-friendly JayPad App to engage Care Recipients socially. While Well-being Information may be communicated in any virtual activities, it is not deemed as the HJ Services that HealthJay provides. Use of the HealthJay Platform does not and is not intended to create or constitute any physician-patient relationship with HealthJay. Use of the HJ Service may offer certain potential benefits (e.g., automated reminders to engage in certain activities), but also presents certain potential risks (e.g., reminder delays could be caused by malfunctioning of equipment or connections, security protocols could fail, causing a breach of privacy of personal information).

  2. Customer can enable Care Circles to respond to requests initiated by Customer Members tapping the Request Button on the JayPad. Such Request Button is not designated for emergency handling nor medical usage. HealthJay does not take any liability about how Customer and Care Circle members use the Request Button. It is a communication feature that alerts Care Circle members to requests initiated from a Customer Member. HJ Services provides notification and communication services. After HealthJay’s server receives a request (a "Response Condition"), Care Circle members will be notified by automated video calls. Care Circle members may, (i) be placed into a video call with the Customer Member to verify the request; (ii) disregard the Response Condition after judging the request. It is in their sole and absolute discretion if they decide to alert Responders to the Response Condition. 

5. Product Handling

  1. Product Returns. If the Product (hereby referring to the JayPad tablet) is returned unopened within 14 days of initial delivery, the Customer will receive a full refund on the purchase price of the System. An unopened Product can be returned between 15 and 30 days of initial delivery for a refund on the purchase price of the Product less a $50 restocking fee. An opened Product can be returned within 30 days of initial delivery for a refund on the purchase price of the Product less a $50 restocking fee. 

  2. System Installation, Activation and Use. Customer must abide by HealthJay’s requirements for the installation and use of the Products and Platform outlined in the System User Manual and Training Sessions. Customer acknowledges the availability of the System User Manual on (www.HealthJay.com/manual) by reference in this Agreement as if set forth in full herein. HealthJay may update the System User Manual from time-to-time and Customer shall be bound thereby upon HealthJay’s update thereof to Customer. 

  3. System Equipment. The Product may include, depending on the plan selected, tablet device, charger, and tablet cradle stand. The Product is under one year factory warranty. For warranty policies view on (www.HealthJay.com/warranty). HealthJay, in its sole discretion, may repair or replace the Product if it becomes damaged or is defective, unless (i) the Product has previously been disassembled, repaired or modified by someone other than us or our authorized service representative or (ii) the System has been damaged as a result of the negligence or misconduct by any person other than us or our authorized service representative. Customer is responsible for ensuring that Custom Members have WIFI or data plan in good working order. 

  4. Limitations of the Product and HJ Services. HealthJay is not responsible for the promptness, sufficiency or adequacy of the participation of any Customer Members even through the Auto Join feature. It is Customer’s sole discretion to enable Auto Join feature to certain Customer Members and it is Customer’s liability to secure Consent of Use for the Auto Join feature to be enacted. For the avoidance of doubt, HealthJay does not take any liability for the Auto Join feature enabled for certain Customer Members. The Products and the HJ Services may rely on the availability of Users’ WIFI network coverage and data plans for the HealthJay Platform to operate properly. There is always a chance that the HealthJay Platform may fail to operate properly. 

  5. Insurance.  HealthJay is not an insurer. The HJ service subscription is based solely on the services we provide and the limitation of liability and other protections arising under this agreement. Accordingly, Customer shall maintain insurance in an amount sufficient to provide full and complete coverage for any loss, damage or expense that may be sustained by Customer or others. HealthJay and representatives are released for all such loss, damage and expense. 

6.         Restrictions 

Customer shall not, and shall not authorize others to (i) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the HealthJay Platform and HJ Services; (ii) use the HealthJay Platform, HJ Services, nor the data within Customer Account in violation of applicable law, third party rights, and this Agreement; (iii) sublicense, repackage, lease, rent, sell, give or otherwise transfer or provide the HealthJay Platform and HJ Services to any third party except as may be provided in this Agreement; (iv) substantially replicate or modify the HealthJay Platform, HJ Services or their elements, except as expressly permitted hereunder or in any applicable API terms made available by HealthJay; (v) use incorrect or outdated Customer Member information in connection with this Agreement; (vi) interfere with, modify or disable any features or functionality of the HealthJay Platform and HJ Services; (vii) transmit files, documents, or any other material that contains viruses, Trojan horses, spyware, worms or any other malicious, harmful, or deleterious programs; (viii) use the HJ Services or HealthJay Platform in connection with unsolicited, unwanted, or harassing communications (commercial or otherwise), including, but not limited to, phone calls, SMS messages, chat, voice mail, or video.

7.         Charges and Payment

  1. Payment Obligations. Customer will be liable for all fees incurred through its use of the HealthJay Platform, including but not limited to subscription fees, Product purchase costs, shipping fees and taxes (collectively, “Charges”). Customer may opt into AutoPay which allows Charges to be submitted directly to Customer for payment either through Customer’s credit card or invoicing if approved by HealthJay in HealthJay’s sole discretion. Customer is the central billing agent for HealthJay. Customer will make payments for JayPad tablet and App, and JayMobile App users. Centralized bill is invoiced monthly by every 5th day of the month for the usage of the previous month. Customer has 30 days to pay the invoice. 

  2. Cancellations and Other Fees.  For all fees payable by Customer, Customer shall also be responsible for any cancellation, late fees or other fees incurred by JayPad tablet and App, and JayMobile App users. Customer is obligated to pay for the full contract term for any subscription in any case of cancellations. 

  3. Credit or Debit Card.  If Customer elects to pay via credit card, then Customer is responsible for either (i) enabling auto-recharge on the Customer Account or (ii) ensuring that the Customer Account has a sufficient positive balance to cover the Charges due. Customer expressly acknowledges and agrees that HealthJay may use a third-party intermediary to process credit and debit card payments, in which case such third-party intermediary will have access to, store, and use Customer’s billing data as necessary to process its payment. A credit card service fee of 3% will be charged by the third-party intermediary. 

  4. Invoicing. HealthJay may invoice Customer for all applicable Charges on a monthly basis. All invoices shall be paid, without offset or deductions, within thirty (30) days of the date of invoice. If Customer is overdue on any payment of Charges, HealthJay may assess and Customer will pay a late fee of the lesser of 3% per month of the overdue amounts or the maximum amount allowable by law. Any Customer purchase order document or other similar document shall be construed solely as evidence of Customer’s internal business processes, and the terms and conditions contained therein shall be void and of no effect with regard to this Agreement.

  5. Taxes. Customer shall be responsible for the payment of any applicable sales or use taxes or any value added or similar taxes payable, arising out of or in connection with this Agreement (collectively, “Taxes”), excluding taxes based upon HealthJay's income.  In the event that HealthJay pays any such Taxes on behalf of Customer, HealthJay shall invoice Customer for such taxes and Customer agrees to pay such taxes in accordance with this Agreement.

  6. Suspension. If the Charges generated by Customer’s use of the HealthJay Platform or HJ Services exceed the amounts prepaid by Customer, any credit card limit, or if Customer otherwise fails to pay any amounts due under this Section 7, HealthJay may suspend or limit Customer’s access to the HealthJay Platform for such Customer Account until such non-payment is corrected without prior notice to Customer. HealthJay will have no liability for any damage, losses (including any loss of data or profits) or any other consequences that Customer may incur in connection with any suspension of the HealthJay Platform and HJ Services pursuant to this Section 7.

8.         Ownership and Data

  1. Ownership. HealthJay and its affiliates are and shall remain the owners of all right, title and interest in and to the HealthJay Platform and HJ Services, including updates, enhancements and new versions thereof, all data related to the use of the HealthJay Platform and HJ Services, and all related documentation and materials provided or available to Customer in connection with this Agreement.

  2. Feedback. Customer acknowledges and agrees that any questions, comments, suggestions, ideas, feedback or other information about HealthJay, the HealthJay Platform or HJ Services (“Feedback”) provided by Customer or any Customer Members, Staff/ Affiliates and Partners to HealthJay are optional, anonymized, non-confidential and shall become the sole property of HealthJay. HealthJay shall have exclusive rights to Feedback, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without notice, acknowledgment or compensation to Customer or any Customer Members, Staff/ Affiliates and Partners.

  3. Use of Marks.  During the Term and subject to the terms of this Agreement, Customer grants to HealthJay a non-exclusive, limited, revocable right to use and display Customer's name and logo (the “Customer Marks”) and Customer’s Use Case(s) (as defined below) on its website, in its earnings calls, in press releases, and in other promotional materials solely in connection with its activities under this Agreement.  A “Customer Use Case” means general description of how Customer uses the HealthJay Platform and HJ Services (e.g., reduce depression).  All such use of the Customer Marks will be in accordance with the Customer's usage guidelines as provided by Customer, if any, and will inure to the benefit of Customer.   Customer may not use HealthJay’s name, logo, and other HealthJay’s trademarks (“HealthJay Marks”), whether registered or not, without HealthJay’s prior written consent. Customer will not, at any time, misrepresent its relationship with HealthJay.  Customer will not make any statements pertaining to HealthJay, its affiliates, HealthJay Marks, HealthJay’s products or services or any other event or occurrence involving HealthJay, if such statements may negatively affect HealthJay’s reputation, present HealthJay in the negative light, claim any rights in the HealthJay Marks, degrade the distinctiveness of the HealthJay Marks or disparage or misrepresent HealthJay, its products or services.

  4. Data. All information related to Customer, Customer Members, Staff/Affiliates and Partners, and their use of the HealthJay Platform or HJ Services as received, collected, compiled, aggregated or produced by HealthJay in connection with this Agreement, including but not limited to, the information contained within the JayPad App, JayMobile App and the FlightDeck and the Customer Account, shall be governed by the terms of HealthJay’s Privacy Policy (https://www.HealthJay.com/privacy), and HealthJay shall have the right to use such data as set forth in HealthJay’s Privacy Policy. For avoidance of doubt, HealthJay may disclose such information to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, without notice to Customer or Customer Members, Staff/Affiliates and Partners. HealthJay determines the extent to which such data will be provided to Customers through the FlightDeck, JayPad App and JayMobile App and Customer Account. Additionally, HealthJay reserves the right to add, remove, and update features and functionality related to such data at any time and will not be responsible for any loss of data or any other damages associated with such changes. 

Customer agrees to use the data contained within Customer Account, HealthJay Platform, or any reports solely for legitimate business purposes related to managing and administering the HJ Services including, but not limited to, business expense processing, accounting, program management, and budgeting purposes.

  1. Security. Customer is entirely responsible for maintaining the security and confidentiality of Customer Account and password. Customer agrees to notify HealthJay immediately of any unauthorized use of Customer Account or any other breach of security. To notify HealthJay, contact HealthJay attech@healthjay.com. Customer is responsible for all use of the Services occurring under Customer username and all content posted in Customer Members profile or with accounts elsewhere on the HJ Services. Customer is responsible for keeping passwords confidential and for notifying HealthJay if any password has been hacked or stolen. HealthJay will not be liable for any loss that Customer, Customer’s Members, Staff/Affiliates, and Partners may incur as a result of someone else using associated passwords or accounts, either with or without Customer’s knowledge. Customer may be held liable for any losses incurred by HealthJay or another party due to someone else using Customer Account or password. Customer agrees to indemnify, defend, and hold harmless HealthJay and its customers, vendors, affiliates, employees, directors, and agents from and again any claims, losses, damages, and other harm arising in connection with the unauthorized use (including without limitation any use by a person or entity other than Customer, and any use not expressly permitted by these Terms) of Customer’s Credentials.

 

9.         Notice and Consents

  1. Notices. Customer is obligated to notify Customer Members that Customer will receive information related to certain Customer Members, including but not limited to, for example, name, time spent on virtual activities, and activity details.

  2. Data Usage.  Customer consents on behalf of itself and each Member Customer to allow HealthJay to use any Member information provided by Customer to (i) provide the HJ Services, (ii) transmit a Request via the HealthJay Platform to available Care Circle members; (iii) allow Members to add each other in Care and Social Circles for communication; (iv) allow Members and Members of Care Circles and Social Circles to audio and video call each other; (v) use and store the Member information for the internal purposes of HealthJay, subject to HealthJay’s Privacy Policy (https://www.HealthJay.com/privacy).  Customer also consents on behalf of itself and each Customer Member to allow HealthJay to share any Customer or Customer Member information with (x) its authorized vendors, service providers, and subcontractors for purposes of performing its obligations hereunder.

  3. Record Maintenance.  Customer agrees that it shall maintain records sufficient to demonstrate all applicable and necessary consents under this Section 9, and Customer agrees to make such records available to HealthJay promptly, and no later than ten (10) days after receiving a request from HealthJay for such records.  Customer shall maintain such records for a period of not less than five (5) years from the last Request submitted for such Customer Members.

10.         Representations and Warranties

In addition to any other representations or warranties in this Agreement, each party represents and warrants that: (i) such party has the full right, power and authority to enter into this Agreement; and (ii) such party’s acceptance of this Agreement, as well as its performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which it is a party.

11.       DISCLAIMER

EXCEPT AS EXPRESSLY SET FORTH ABOVE AND TO THE FULLEST EXTENT PERMITTED BY LAW, HEALTHJAY SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE HEALTHJAY PLATFORM AND HJ SERVICES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ALL WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIALS, SERVICES OR SOFTWARE.  HEALTHJAY PROVIDES THE HEALTHJAY PLATFORM AND HJ SERVICES “AS IS”. HEALTHJAY DOES NOT WARRANT THAT THE HEALTHJAY PLATFORM AND HJ SERVICES WILL MEET CUSTOMER REQUIREMENTS OR THAT THE OPERATION OF THE HEALTHJAY PLATFORM AND HJ SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.  TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.

13.       Confidentiality

Each party (“Discloser”) may disclose certain information to the other party (“Recipient”) that is deemed “Confidential Information” of the Discloser. The terms and conditions of this Agreement, the HJ Platform and HJ Services, and any information disclosed by Discloser to Recipient in connection with this Agreement that is marked as confidential or proprietary constitutes Confidential Information. Recipient shall use the Confidential Information solely to fulfill its obligations and exercise its rights under this Agreement, and all Confidential Information shall remain at all times the sole and exclusive property of Discloser. Recipient shall hold Discloser’s Confidential Information with at least the same degree of care as it holds its own Confidential Information and may disclose Confidential Information to its employees, agents, contractors, and actual or potential investors, who have a need to know such information and are subject to enforceable obligations,  no less stringent than those set forth herein,  to maintain the confidentiality of such information.  HealthJay may disclose Confidential Information in accordance with applicable law or legal process in relation to the HJ Services and/or Members provided on the HealthJay Platform.  Customer may disclose the Confidential Information as required by applicable law provided that, prior to any such compelled disclosure, Customer will, if permissible: (a) promptly notify the HealthJay in writing to allow HealthJay a reasonable opportunity to resist such disclosure and/or seek a protective order, and (b) reasonably cooperate with the HealthJay in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure. In the event that such protection against disclosure is not obtained, Customer will be entitled to disclose the Confidential Information of the disclosing party, but only as and to the extent necessary to legally comply with such compelled disclosure. "Confidential Information" does not include any information or materials disclosed to the Recipient by Discloser which Recipient can demonstrate by means of written evidence:  (i)  was already rightfully known to  Recipient at the time of its receipt hereunder as shown by contemporaneous documents in the Recipient’s files; (ii) is or becomes generally available to the public other than by means of the Recipient’s breach of its obligations under this Agreement; (iii) is independently obtained from a third party whose disclosure violates no duty of confidentiality; or (iv) is independently developed by or on behalf of the Recipient as shown by contemporaneous documents in Recipient’s files without the use of or reliance on any Confidential Information of Discloser.

14.       Indemnification

  1. Indemnification by HealthJay.

    1. Infringement Indemnity. HealthJay will indemnify, hold harmless, and defend  Customer and its directors, officers, employees, agents, stockholders, and Affiliates (collectively, the “Customer Indemnified Parties”) from and against all demands, actions, suits, discovery demands, including, without limitation, third party subpoenas, government investigations or enforcement actions, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs) related thereto, from a third party (collectively, “Claim(s)”) alleging that the use of the HealthJay Platform or HJ Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, trademark or patent.

    2. Options.  If the use of the HealthJay Platform and/or HJ Services by Customer has become, or in HealthJay’s opinion is likely to become, the subject of any claim of infringement, HealthJay may at its option and expense: (x) procure for Customer the right to continue using the HealthJay Platform and/or HJ Services as set forth herein; (y) modify the HealthJay Platform and/or HJ Services to make it non-infringing; or (z) if the foregoing options are not reasonably practicable, terminate this Agreement and refund Customer any unused prepaid Charges.  This Section 12(a) states Customer’s exclusive remedy, for any claim by a third party alleging that the use of the HealthJay Platform and/or HJ Services as permitted hereunder infringes or misappropriates a third-party copyright, trade secret, trademark or patent.

    3. Limitations.  HealthJay will have no liability or obligation with respect to any Claim arising out of: (x) use of the HealthJay Platform or HJ Services by Customer not in accordance with this Agreement; or (y) the combination, operation, or use of the HealthJay Platform or HJ Services with other applications, portions of applications, products, or services where the HealthJay Platform or HJ Services would not by itself be infringing.

  2. Indemnification by Customer. Customer shall indemnify, defend and hold harmless HealthJay and its directors, officers, employees, agents, affiliates, successors and assigns (collectively, the “HealthJay Indemnified Parties”) from and against any Claim arising from or related to (a) Customer’s or Customer Personnel’s breach of this Agreement, (b) Customer’s or Customer Personnel’s failure to obtain, maintain or prove the consents required under Section 9 of this Agreement, (c) Customer’s or Customer Personnel’s violation of applicable law; (d) any activity under the Customer Account, except to the extent caused by HealthJay’s breach of this Agreement.

  3. Conditions of Indemnification.  As a condition of the foregoing indemnification obligations: (i) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Claim, provided, however, that the failure to give such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (ii) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party's consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (iii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. The Indemnifying Party will pay all costs and reasonable legal fees following notice of the Claim, which shall be provided in accordance with this Section 14(c), and any settlement amounts agreed to be paid by the Indemnifying Party or any damages awarded against the Indemnified Party in connection with any such Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify under this Section 14 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.

15.       LIMITATION OF LIABILITY  

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHER SIMILAR DAMAGES ARISING UNDER THIS AGREEMENT, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE AMOUNT OF ANY AND ALL LIABILITY OF ONE PARTY TO THE OTHER FOR ANY CLAIM(S) ARISING FROM OR RELATING TO THE AGREEMENT, SHALL BE LIMITED TO DIRECT AND PROVABLE DAMAGES AND SHALL NOT EXCEED, IN ANY EVENT, THE LESSER OF (I) ONE HUNDRED THOUSAND DOLLARS ($100,000) OR (II) THE CHARGES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE EVENT OR OCCURRENCE GIVING RISE TO THE APPLICABLE CLAIM.  THE LIMITATIONS OF LIABILITY IN THIS SECTION SHALL NOT APPLY TO ANY CLAIMS OR INCIDENTS RELATED TO A PARTY’S BREACH OF CONFIDENTIALITY, ANY OUTSTANDING PAYMENT OBLIGATIONS OF CUSTOMER, OR EACH PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS UNDER SECTION 14.

16.       Term, Termination, and Suspension

This Agreement shall commence on the date of Customer’s acceptance hereof and shall remain in effect until terminated as set forth herein (the “Term”). Either party may terminate this Agreement with or without cause immediately upon thirty (30) days prior written notice to the other party. All outstanding payment obligations and Sections 6-21 of this Agreement shall survive the termination of this Agreement.  HealthJay may also suspend the Customer Account immediately if: (i) Customer violates (or gives HealthJay reason to believe Customer has violated) the Agreement; (ii) there is reason to believe the Customer’s use of the HealthJay Platform and HJ Services is fraudulent or negatively impacting the operating capability of the HealthJay Platform; (iii) HealthJay determines, in its sole discretion, that providing the HealthJay Platform and HJ Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the HealthJay Platform and HJ Services; (iv) Customer disputes any Charges, pursuant to Section 6 hereof; or (v) subject to applicable law, Customer undergoes liquidation, commencement of dissolution proceedings, disposal of its assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Customer becomes the subject of bankruptcy or similar proceeding. HealthJay will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with connection with any suspension pursuant to this Section.

17.       Force-majeure

Nonperformance of either party under this Agreement shall be excused to the extent and during the period that performance is rendered impossible by strike, fire, flood, earthquakes, epidemic or pandemic, governmental acts or orders or restrictions, failure of suppliers, or contractors, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party. Unless otherwise agreed to by the parties, each party will be responsible for the costs and expenses incurred by it in connection with this Agreement.

18.       Governing Law

This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles.  The parties consent to the personal and exclusive jurisdiction of courts located in the County of Santa Clara, California.  Each party waives a jury trial in any matter arising out of or relating to this Agreement. 

19.       Arbitration 

Any dispute, claim, or controversy arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof (other than for claims or disputes related to the intellectual property of a party), shall be determined through binding arbitration under JAMS Comprehensive Arbitration Rules and Procedures. The parties shall share equally the fees and expenses of the JAMS arbitrator. The arbitration shall be conducted by a sole arbitrator chosen by the mutual agreement of the parties or, failing that, by JAMS under its then prevailing rules.  Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies.  Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure.  The parties will jointly bear the expense of any arbitrator.  Any arbitration proceedings shall take place at a location mutually agreed upon by the parties to this Agreement.  If the parties fail to agree upon a location, then such arbitration proceedings shall take place in Santa Clara County, California.

20.       Assignment

Neither party may assign this Agreement (by operation of law or otherwise) without the prior written consent of the other party, and any prohibition assignment or sublicense will be null and void.  Notwithstanding the foregoing, either Party may assign this Agreement to an affiliate or in the event of a merger, sale, or acquisition of all or substantially all of the assigning party’s assets or stock.

21.       Miscellaneous  

This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. Customer’s use of the HealthJay Platform and HJ Services is subject to this Agreement, as may be modified or updated by HealthJay from time to time.  HealthJay will provide advance notice of any material revisions impacting Customer’s use of the HJ Services through your Customer Account or via an e-mail to the e-mail address owner of your Customer Account.  Continued use of the HealthJay Platform and HJ Services after any such modifications, updates, or notices shall constitute Customer’s consent to such changes. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venture of the other.  This Agreement shall not be construed to prohibit HealthJay from entering into the same or similar agreements with other parties.  In the event that any provision or provisions of this Agreement will be held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Any ambiguity contained in this Agreement shall not be construed against any party as the draftsman, but shall be construed in accordance with its fair meaning. This Agreement will be binding upon and will inure to the benefit of the parties permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure of either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.  In this Agreement, the words "including" and "include" mean "including, but not limited to”. All notices hereunder shall be in writing (including email) and shall be sent to the addresses set forth herein or in the Customer Account, or to such other address as either party shall have notified to the other party.