These TERMS OF SERVICE (this “Agreement”) is made between AJQ Software Limited dba Florie. (“Florie”) and the person or entity to whom we provide our Services (as defined below) (“Customer”, “you” or “your”).
Florie provides certain services relating to the transfer of medical referrals, referral network development and analysis, encrypted messaging, and other digital communications and tools (the “Services”) through the web site located at www.myflorie.com and such other sites, including mobile applications, as may be designated by Florie (each, the “Site” or collectively, the “Sites”). All access to and use of the Services available through the Site are subject to the terms of this Agreement. If you wish to access and use the publicly available portions of the Services and the Site, you may do so only in compliance with this Agreement. If you have signed up (whether through the Site, by email, phone, or otherwise) with Florie (your “Order”) and use the Services requiring registration, Florie is willing to accept your Order and provide you with access to and use of those Services subject to you complying with this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU (1) HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) IF AN INDIVIDUAL, ARE 18 YEARS OR OLDER, AND; (3) MEET THE OTHER QUALIFICATIONS SET FORTH IN THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date you first submit an Order relating to the Services or first access or use the Services or the Site (the “Effective Date”). This Agreement consists of the following terms and conditions and each Order submitted by you and accepted by Florie, each of which is incorporated in and made a part of this Agreement.
1. Definitions
Capitalized terms used in this Agreement will have the definitions given in this Agreement, and other terms will have their plain English meaning as commonly interpreted in the United States.
2. Changes to this Agreement
Florie reserves the right, at any time, to change or modify the terms of this Agreement by making such changed or modified terms available on the Site or by providing other notice to you. Any such change or modification will be effective 30 days after posting on the Site or such other notice. You will be deemed to have agreed to such change or modification of this Agreement through your continued use of the Site or Services.
3. SOWs
You may also enter into one or more statements of work with Florie for customized onboarding, delivery, optimization, or similar services included in the Services (each, a “SOW”). Each SOW shall be governed by this Agreement in addition to the terms of such SOW. In the event of a conflict between an SOW and this Agreement, the Terms of the SOW shall prevail in relation to the provision of the specific Services referenced therein.
4. Changes to the Site and Services
The features and functions of the Service, including the APIs, may change over time. It is your responsibility to ensure that calls or requests you make to the Service are compatible with then-current APIs. Although Florie endeavors to avoid changes to the APIs that are not backwards compatible, if any such changes become necessary, Florie will use commercially reasonable efforts to notify you at least 30 days prior to implementation. Notwithstanding the foregoing, you agree that Florie may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
5. Orders and Confirmation
In order to receive the Services you must create an account with us through the Site (your “Order”). Florie will confirm your Order either through the Site at the time you submit your Order or by providing you with access to the Services (each, a “Confirmation”) at which point a legal contract will be formed between you and Florie. If the terms of any Order conflict with the terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with respect to the Services provided to you. By accessing or using any of the Services, you agree to be bound by the terms of this Agreement and each applicable Order and Confirmation with respect to those Services.
6. Term
If you have ordered a non-trial subscription to the Services, then the term of this Agreement will commence on the Effective Date and continue for the initial period stated in the applicable Order or Confirmation for the Services (the “Initial Term”) and will thereafter automatically renew for successive additional periods of equal duration or as otherwise set forth in such Order or Confirmation (the “Renewal Term”, and together with the Initial Term, the “Term”). If no Initial Term is stated in the applicable Order or Confirmation for the Services, this Agreement will continue for an Initial Term of one month and will thereafter automatically renew for successive additional one-month Renewal Terms. Unless terminated as set forth herein, the Term will continue to renew until you notify Florie that you do not wish to renew the Agreement at least 10 days prior to the end of the then-current Term. In all other cases, the Term will continue until terminated as set forth herein.
7. Subscription; Florie Service
During the Term, Florie will provide you with a limited subscription to access and use the Services subject to Confirmations under this Agreement, solely for your own use in connection with your own business purposes and not for resell, lease, license or sublicense.
8. Trial/Free Subscription
If you have ordered a trial subscription to the Services or a subscription to any free Services, as indicated in an Order (a “Trial/Free Subscription”), then the following additional terms shall apply during any such Trial/Free Subscription: (a) the Term will continue for the period of the Trial/Free Subscription indicated in the Order and will thereafter expire unless you place an Order for a non-trial subscription to the Services prior to the expiration thereof; (b) this Agreement may be terminated by Florie, at any time, in Florie’s sole discretion, for any reason or no reason, upon notice to you; (c) Florie shall have the right to include its trademark or service mark (including any name, logo, slogan or product or service names) in email communications sent by you; and (d) Section 13 (Fees and Payment), Section 17(a) (Warranties and Disclaimer – By Florie), and Section 18(a) (Indemnity – By Florie) will not be applicable to you.
9. Access to the Services
Upon Confirmation of your Order by Florie, you will be granted access to the Services using the usernames and passwords applicable to your Account (each such username and password, an “Account ID”). Each Account ID is personal in nature and may be used only by you or, if you are an organization, by designated employees within your organization or contractors who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the “User” of the Account). You are solely responsible for all use of the Services by each User and for compliance by each User with this Agreement. You will ensure the security and confidentiality of each Account ID and will notify Florie immediately if any Account ID is lost, stolen or otherwise compromised. you acknowledge that you are solely responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by you. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you and each User to connect to, access, and use the Services and the Sites.
10. Applicable Policies
In addition to the terms of this Agreement, your access to and use of the Site and Services are subject to Florie’s then-current policies relating to the Site and Services, including, without limitation, the Florie Privacy Policies.
11. Software
Software or code available on or for download through the Site or Services (“Software”), if any, are protected by IPR (as defined below). Unless otherwise expressly stated in a license or other agreement separate from this Agreement that you may have entered into (or may enter into) with Florie relating to any Software (each such license or other agreement, a “Software License Agreement”), Florie grants you a limited, non-exclusive right and license to download, install and execute the Software in accordance with the instructions provided on the Site and solely for your own business purposes in connection with your access to and use of the Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), you are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any IPR therein or related thereto, and you may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of Florie. Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
12. Add-ons
Florie may make available through the Services additional optional, non-essential features, functionality, and services (“Add-ons“). Your use of Add-ons is subject to this Agreement and any other agreement separate from this Agreement that you may enter into (or may have entered into) relating to the Add-on. Except as set forth in this Agreement, the terms of any Add-on Service Agreement will control in the event of a conflict between the terms of this Agreement and such Add-on Service Agreement. Add-ons may be subject to additional Fees as set forth on the Site or Confirmation. You acknowledge Florie is not a party to the Add-on Service Agreement between you and the Add-on Partner with respect to that Add-on, and the Add-on Partner of each Add-on is solely responsible for that Add-on, the content therein and any claims that you or any other party may have relating to that Add-on or your use of that Add-on. By purchasing an Add-on, you give consent for Florie to share your Content and user information with the Add-on Partner as necessary in order to provide you with the Add-on. The license granted to you to use any Add-on is personal to you, and is not sub licensable or transferrable to your end users. You will not provide or resell Add-ons to others. Notwithstanding the terms of any Add-on Service Agreement, Florie may change, modify or discontinue any Add-on at any time and without notice to you, subject to any continuing rights you may have under the Add-on Service Agreement.
13. Restrictions
You acknowledge the Services, Sites, Software, and the databases, hardware and other technology used by or on behalf of Florie to provide the Services and operate the Sites (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of Florie. You will not, and will not permit any third party to: (a) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (b) use the Site, Services or any Software to harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (c) use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (d) use automated scripts to collect information from or otherwise interact with the Site, Services or any Software; (e) use the Site, Services or any Software to intimidate or harass any other people or entities; (f) alter, modify, reproduce, create derivative works of the Services, Technology, or any Software; (g) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software; (h) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; (i) interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software; or (j) use the Service for any high risk activities including, but not limited to, the operation of nuclear facilities, air traffic control, life support systems, emergency services or where the use or failure of the Service could lead to death, personal injury or environmental damage (collectively, “High Risk Activities”). You will not allow any access to or use of the Services by anyone other than your authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
14. Fees and Payment
You agree to pay Florie all fees set forth in each Order or Confirmation and any fees otherwise specified on the Site (“Fees”). All Fees will be billed as indicated in each Order or Confirmation. Unless Florie and you expressly agree otherwise in writing, all Fees are payable in your local currency. You will also be responsible for all use, sales, and other taxes imposed on the Services, other than taxes that are imposed on or measured by the net income, property tax or payroll taxes of Florie. Florie may change any portion of the Fees by posting the changes to the Sites or otherwise notifying you through the Services of the change, such changes to take effect at the beginning of the next Renewal Term.
Payment Terms. If the applicable Order or Confirmation does not specify the payment terms, the initial payment of Fees specified under such Order or Confirmation for each period in your subscription will be due and payable by you in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If you have specified a credit or debit card as an applicable payment mechanism under this Agreement, you grant Florie the right to charge the credit card provided to Florie for all Fees incurred under this Agreement. Except as expressly set forth herein or agreed to in writing with Florie, all Fees will be non-refundable once paid to Florie, including upon any termination or suspension of this Agreement. Subject to Section 13(c) (Fee Disputes), if you are overdue on any payment of Fees and fail to pay within five business days of a written notice of overdue payment, Florie may charge you a late fee equal to the lesser of 2% per month above the base lending rate of Bank of Ireland plc or the maximum amount permitted under applicable law. If Florie requires use of collection agencies, solicitors, or courts of law for collection on your account, you will be responsible for those expenses.
Fee Disputes. In the event you dispute any portion of the Fees paid or payable by you under this Agreement, you must provide written notice to Florie and the parties will work together to resolve the applicable dispute promptly.
15. Restrictions
Termination by Notice. Either party may terminate this Agreement with immediate effect by written notice to the other party.
Termination for Breach. This Agreement may be terminated by Florie, at any time, in Florie’s sole discretion, upon any breach by you of this Agreement that remains uncured 10 days after Florie delivers written notice to you of such breach.
Without limiting Florie’s right to terminate this Agreement, Florie may also immediately and indefinitely suspend your access to the Sites or Services, with or without notice to you, upon any actual, threatened or suspected breach of this Agreement or upon any other conduct deemed inappropriate or detrimental to the Services by Florie including, but not limited to, rogue script, bad send and unauthorized takeover or other malicious activity on your Account.
Effect of Termination. Upon termination or expiration of this Agreement for any reason: (i) all rights and subscriptions granted to you under this Agreement will terminate; (ii) you will immediately cease all use of and access to the Sites and Services; (iii) all Fees then owed by you will become immediately due and payable; (iv) you will immediately either return to Florie or, at Florie’s discretion, destroy the Florie Confidential Information in your possession or control; and (v) Florie shall delete any of your Content held by Florie in accordance with Florie’s then-current data retention policy. The following sections of this Agreement will survive any expiration or termination of this Agreement: Section1 (Definitions), Section7(d) (Trial/Free Subscription), Section9 (Applicable Policies), Section11 (Add-ons), Section12(Restrictions), Section13 (Fees and Payment), this Section14(c)(Termination and Suspension – Effect of Termination), Section15(Ownership of IPR), Section16(d) (Content – Service Data), Section16(e)(Content – Customer Feedback), Section17(c) (Warranties and Disclaimer – Disclaimer), Section18(b) (Indemnity – By you),Section19 (Limitations on Liability), Section20 (Data Privacy), Section21 (Confidentiality), Section24(Disputes),Section25 (Governing Law) and Section26 (General).
16. Ownership of Intellectual Property Rights.
By Florie. Florie retains all right, title and interest, including, without limitation, all IPR in and to the Sites, Services, Technology, Florie Content (as defined below), any Software, and any additions, improvements, updates, and modifications thereto. you acknowledge that you are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to you to use them apart from your right to access the Services under this Agreement. The Florie name, logo and the product and service names associated with the Services are trademarks of Florie (or its third party providers), and no right or license is granted to you to use them.
By You. you retain all right, title and interest, including, without limitation, all IPR in and to your products and services and your Content (as defined below) and any additions, improvements, updates, and modifications thereto. Florie acknowledges that it is not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to Florie to use them, except as expressly set forth herein.
17. Content
Florie Content. Florie provides you with access to certain data, information and other content through the Site and Services (“Florie Content”). Subject to this Agreement, each User may: (i) access the Florie Content solely for your own business purposes in connection with the use of the Services; and (ii) distribute the Florie Content as incorporated into emails generated and sent by you through the Services. Except as expressly provided in this Agreement, you will not, and will not permit any User to alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the Florie Content. Certain of the Florie Content includes or is based on data, information and content from independent third-party providers (“Third-Party Content”). Florie uses commercially reasonable measures to ensure that the Third-Party Content is reliable, but Florie has no independent basis to verify or contradict the accuracy or completeness of the Third-Party Content and will not be responsible for any erroneous Third-Party Content provided through the Services.
Your Content. You will be solely responsible for all data, information, and other content provided by, or collected or obtained from, you or any of your Users through the Services, including, without limitation, all personal data relating to you or any of your Users, customers, service providers, employees, contractors or agents (“your Content”). you, on behalf of Yourself, grant to Florie all necessary rights and licenses in and to your Content necessary for Florie to provide, optimize and maintain the Services, to manage the Florie platform, system administration and security, comply with applicable Laws, and to investigate and prevent system abuse or fraud, unauthorized access to or use of the Services, breaches of this Agreement or applicable policies, and other wrongful behavior. As between you and Florie, you retain all of your rights in and to your Content and do not convey any proprietary interest therein to Florie other than the licenses set forth herein. you will maintain an adequate back-up of all your Content and Florie will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of your Content. Florie may take remedial action if any of your Content violates this Agreement, provided that Florie is under no obligation to review any of your Content for accuracy or potential liability.
Customer Feedback. If you provide Florie feedback or suggestions about the Service, Florie may use that information without obligation to you, and you, on behalf of yourself, hereby irrevocably assign to Florie all right, title, and interest in such feedback or suggestions.
18. Warranties and Disclaimer.
By Florie. Florie represents and warrants to you that Florie will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. Florie’s sole obligation and your sole and exclusive remedy in the event of any failure by Florie to comply with the foregoing sentence will be for Florie to, at Florie’s option, re-perform the affected Services or refund to you the Fees you have actually paid for the affected Services during the month in which the failure occurred.
By You. you hereby represent, warrant, and covenant for the benefit of Florie that: (i) you have the legal right and authority to enter into this Agreement, and, if you are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (ii) you have the legal right and authority to perform your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement you enter into in connection with any of the Services; (iii) your Content, and any other data, information or content you provides to Florie in connection with this Agreement and your access to the Site and use of the Services, is correct and current and does not or will not violate this Agreement; (iv) you have all necessary right, title, interest and consent necessary to allow Florie to use your Content for the purposes for which you provide your Content to Florie, including, without limitation, the delivery of any and all emails and other communications; and (v) you will comply with any applicable international, federal, state or local treaties, laws, rules, regulations or ordinances (“Laws”) regarding your use of or access to the Site or Services or regarding your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited.
DISCLAIMER . EXCEPT AS EXPRESSLY SET FORTH IN SECTION17(a), THE SITES AND SERVICES (AND ALL FLORIE CONTENT PROVIDED THROUGH THE SITES AND SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND FLORIE AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NEITHER THE SOFTWARE, THE SITES NOR THE SERVICES ARE DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES. NEITHER FLORIE NOR ITS LICENSORS WARRANT THAT THE OPERATION OF THE SOFTWARE OR THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FLORIE, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES OF FLORIE EXPRESSLY SET FORTH IN SECTION17(a).
19. Indemnity
By Florie. Florie will, at its expense, defend you against any claims brought against you by a third party that your use of the Services in accordance with this Agreement infringes any copyright, trade secret or trademark right. The foregoing obligations of Florie under this Section18(a) are conditioned upon you providing Florie with: (i) notice of any such claim within 10 days after you receive written notice thereof; (ii) sole control over the defense and settlement of such claim; and (iii) reasonable assistance (at Florie’s expense) in the defense and settlement of such claim. If you are, or Florie reasonably believes you may be, enjoined from using the Services, Florie, at Florie’s option and expense, may procure the right for you to continue using the Services, replace or modify the Services so that they become non-infringing, or provide you a refund of all pre-paid amounts applicable to such Services (if any) and terminate this Agreement with respect to such Services. This Section 18(a) constitutes Florie’s sole and exclusive liability, and your sole and exclusive remedy, for any third-party claims under this Agreement.
By You. you hereby indemnify, defend, and hold harmless Florie and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (the “Florie Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Florie Indemnified Party arising from your accessing or using the Site, Services, Software, your Content, Florie Content, any email or other communication generated or sent through the Services or the GR Service (as applicable), or any breach of this Agreement. Florie will provide you with notice of any such claim or allegation, and Florie will have the right to participate in the defense of any such claim at its expense.
19. Limitations on Liability
NO SPECIAL DAMAGES. IN NO EVENT WILL FLORIE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SOFTWARE, TECHNOLOGY, SERVICES (OR ANY FLORIE CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
CUMULATIVE LIABILITY. FLORIE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO FLORIE HEREUNDER IN THE TWELVE MONTHS PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY. YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT FLORIE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FLORIE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
SPECIAL LIMITATIONS. FOR THE PURPOSE OF CLARITY, FLORIE WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (I) SENSITIVE DATA SENT TO FLORIE; (II) VIOLATION OF ANY LAW BY FLORIE WHEN ACTING AT YOUR DIRECTION; OR (III) THE SENDING BY FLORIE OF YOUR EMAILS, INCLUDING ANY CLAIMS AGAINST FLORIE DUE TO YOUR SENDING OR DATA COLLECTION PRACTICES OR YOUR CONTENT.
20. Data Privacy
Definitions. For the purposes of this Agreement, “Patient Data” shall mean data relating to your Patients initially provided by you to Florie, including data relating to your Patients’ appointments with other Users; “Data Processing Agreement” shall mean the data processing agreement set out in the schedule to this Agreement, as amended from time to time in accordance with Clause 21.5; “Privacy Policy” shall mean Florie’s Privacy Policy with respect to its processing of data that it controls; the terms “personal data”, “processing” and “data subject” have the same meanings as those given to them in EU General Data Protection Regulation 2016/679 (“GDPR“).
Your Personal Data. You acknowledge that any Personal Data you provide to Florie will be processed in accordance with the Privacy Policy- General.
Patient Data- Your Obligation. You are responsible for complying with all applicable data protection and privacy laws in respect of your use of the Services and without limiting the foregoing you represent and warrant to Florie that you informed and obtained all necessary rights, authorizations or consents from any data subjects to whom the data relates, to enable Florie to lawfully receive and process their personal data under this Agreement and, where applicable, to process their personal data outside of their country of residence.
Patient Data- Florie’s Obligation. Florie shall only process Patient Data in accordance with the Data Processing Agreement which shall be incorporated into and form part of these terms and conditions.
Amendment to Data Processing Agreement. Florie may amend the terms of the Data Processing Agreement after providing at least 7 days’ written notice to you (with an email to your address listed in Florie being sufficiently equivalent).
Service Data. Notwithstanding anything in the Privacy Policies, Florie will have the right to collect, extract, compile, synthesize, and analyze aggregated, non-personally identifiable information or data (data or information that does not identify you or any other entity or natural person as the source thereof) resulting from your access to the Site and your use and operation of the Services including, by way of example and not limitation, information relating to volumes, frequencies, bounce rates, or any other information regarding the email and other communications you generate and send using the Services (collectively, “Service Data”). To the extent that Service Data is collected or generated by Florie, such data will be solely owned by Florie, constitutes “Florie Content” hereunder and may be used by Florie for any lawful business purpose without a duty of accounting to you, customers, or recipients.
21. Confidentiality
Definition. For purposes of this Agreement, “Confidential Information” means all nonpublic information disclosed or made available under this Agreement by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to the Technology, the provision or receipt of the Services, or the Disclosing Party’s technology, finances, operations, customers or business; provided, however, that “Confidential Information” does not include (i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Receiving Party or by any of the Receiving Party’s Representatives (as defined below); (ii) any information that was in the Receiving Party’s possession prior to the time it was first made available to the Receiving Party or any of the Receiving Party’s Representatives by or on behalf of the Disclosing Party or any of the Disclosing Party’s Representatives, provided that the source of such information was not and is not known to the Receiving Party to be bound by any contractual or other obligation of confidentiality to the Receiving Party or to any other person with respect to any such information; (iii) any information that becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s Representatives, provided that such source is not known to the Receiving Party to be bound by any contractual or other obligation of confidentiality to the Disclosing Party or to any other person with respect to any of such information; or (iv) any information that is independently developed by the Receiving Party or any of the Receiving Party’s Representatives without the use of or reference to any of the Disclosing Party’s Confidential Information. For purposes of this Section, a party’s “Representatives” will be deemed to include each person or entity, as applicable, that is or becomes (A) a subsidiary or other affiliate of such party, and (B) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates. For the avoidance of doubt, (1) the Services, Technology, and Florie Content are the Confidential Information of Florie, (2) all data regarding your patients, including without limitation, identities and email addresses are your Confidential Information, and (3) Service Data will not be your Confidential Information.
Confidentiality Obligations. The Receiving Party agrees to protect the Disclosing Party’s Confidential Information with the degree of care the Receiving Party uses to protect its own confidential information of like nature, but in no case less than reasonable care. The Receiving Party agrees that, except as expressly directed by the Disclosing Party, it will not at any time during or after the Term: (i) disclose any Confidential Information to any third party (other than the Receiving Party’s Representatives); (ii) permit any third party (other than the Receiving Party’s Representatives) to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or (iii) use any of the Confidential Information for any reason other than for the purposes of this Agreement. The Receiving Party may disclose Confidential Information to its Representatives having a need to receive the Confidential Information in the performance of their duties under this Agreement; provided, however, that such Representatives are informed of the confidentiality obligations hereunder and the Receiving Party is responsible for such Representatives’ compliance therewith. If the Receiving Party is required to disclose the Disclosing Party’s Confidential Information pursuant to any Law, order, subpoena or document discovery request, it will furnish written notice of such disclosure to the Disclosing Party so long as such notice is not prohibited by Law. When permitted, the Receiving Party will provide notice to the Disclosing Party of such disclosure as soon as practicable so that the Disclosing Party has an opportunity to seek a protective order or take other efforts to modify or restrict the disclosure through legal means. The Receiving Party will reasonably cooperate in such efforts at the Disclosing Party’s reasonable expense. Each party has the discretion to accept service of any subpoena or other document request without a requirement for such party seeking such disclosure to comply with applicable rules of service. Each party acknowledges that its breach of this Section may cause irreparable damage to the other party and hereby agrees that the other party will be entitled to seek injunctive relief under this Section, as well as such further relief as may be granted by a court of competent jurisdiction. In the event of any conflict between the Privacy Policies and the provisions of this Section, the provisions of this Section shall control.
23. Claims of Infringement.
Just as Florie requires users of the Site to respect the IPR of Florie, its affiliates, and other third parties, Florie respects the IPR of Users of the Site and other third parties. If you believe in good faith that your copyrighted work has been reproduced on the Site without authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by mail to:
AJQ Software Limited trading as Florie
Attn: Copyright Infringement Agent
20 Harcourt Street
Dublin 2
IRELAND
Please provide the following information to Florie’s Copyright Infringement Agent:
the identity of your work, and of the allegedly infringing work;
your name, address, daytime phone number, and email address, if available;
a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the Law;
a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner; and
your electronic or physical signature.
24. Linked Sites
The Site and communications sent through the Services may contain links to third-party sites that are not under the control of Florie, and Florie is not responsible for any content on any linked site. If you access a third-party site from the Site or from a communication sent through the Services, then you do so at your own risk. Florie provides links only as a convenience, and the inclusion of the link does not imply that Florie endorses or accepts any responsibility for the content on those third-party sites. Florie welcomes links to the www.myflorie.com site, as well as links to Florie mobile apps. You may establish a link to the Florie site or mobile apps, provided that the link does not state or imply any sponsorship or endorsement of your site by Florie or any group or individual affiliated with Florie. With the exception of links, buttons, and functions specifically and uniquely offered through the Florie web application, You will not (a) use on your site any Florie Content or IPR appearing on the Site in establishing the link; or (b) frame or otherwise incorporate into another site the Florie Content IPR appearing on the Site without prior written consent.
25. Disputes
Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within five days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under I accordance with the Arbitration Act 2010 (the “Act”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Act. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Florie in New York City, NY. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
26. Governing Law
The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the United States. Each party agrees that it will only bring any action or proceeding arising from or relating to this Agreement in a US court of law and each party irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts.
27. Notices
Service of Notices. Any notice required to be given in writing under this Agreement may be given:
by pre-paid post or other delivery service to the relevant party’s address as set out in Clause 27.2 below;
by email to the other party’s email address as set out in Clause 27.2 below; or
via the messaging tools or other dashboard options incorporated into the Services
and such notice shall be deemed to have been served
in the case of a notice sent by pre-paid post or other delivery service, 2 Business Days after the notice is sent;
in the case of a notice sent by email, at 9.00 am on the next Business Day after the notice is sent;
in the case of a notice sent by the messaging tools or other dashboard options incorporated into the Services, at 9.00 am on the next Business Day after the notice is sent, and in this Clause 27.1, “Business Day” shall mean a day other than a Saturday or Sunday on which clearing banks in Ireland are open for business.
Addresses for Notice. The parties addresses for service of notices shall be those set out below (or such other addresses as are notified to the other party to this Agreement in accordance with Clause 27.1:
Florie:
Postal Address: Referromed US Inc trading as Florie
Attn: Copyright Infringement Agent
8 Rockville Ave
Rockville Centre, NY 11570
Email Address: info@myflorie.com
Customer:
Postal Address: As per your profile linked to your Account
Email Address: As per your profile linked to your Account
28. General
Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties.
All waivers under this Agreement must be in writing.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the Law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the Law, and the remaining provisions will remain in full force.
The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable legal fees, including costs and fees on appeal.
Neither this Agreement nor any rights or obligations of you hereunder may be assigned or transferred by you (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Florie. Any assignment in violation of the foregoing will be null and void.
Florie may assign this Agreement to any party that assumes Florie’s obligations hereunder. Save to the extent otherwise expressly stated, this Agreement does not confer any benefits on any third party unless it expressly states that it does.
The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.
This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.
Florie may reference you as a user of the Services and use your name and logo, as applicable, in listings of users of the Services appearing on the Florie web site and for other marketing and promotional purposes relating to the Services.