Terms of Use - Air Visits

Terms of Use

Last updated: July 16, 2020

These terms of use (“Terms of Use”) are a legal agreement between you and Air Visits, Inc. (“Air Visits,” “we,” “us,” or “our”). These Terms of Use govern your use of our Telemedicine911.com system, accessible through https://www.telemedicine911.com/ (the “Service”). By clicking “I Accept,” and by accessing and using the Service, you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Use and our privacy policy, accessible through https://www.telemedicine911.com/terms-and-conditions-privacy-policy/ (“Privacy Policy”), which is hereby incorporated by reference (these Terms of Use and the Privacy Policy are collectively referred to as the “Agreement”). Your compliance with the Agreement is a condition to your use of the Service. If you do not agree to the terms of the Agreement, you are not permitted to use the Service.

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM CAREFULLY.

If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

The Service; Accounts and Registered Users

The Service provides a platform for telecommunications and video communications that enables telehealth care providers and others to remotely contact 911 Public Safety Access Points (“911 PSAP”) for dispatch of emergency medical services and other services to individuals in need (“Patients”) at the Patients’ locations. Subject to your compliance with the terms and conditions of the Agreement, we grant you a limited, non-exclusive, non-transferable, revocable right to access and use the Service solely for your internal business purposes. We reserve all rights in the Service not expressly granted to you herein. If you violate any terms or conditions of the Agreement, your permission to access and use the Service immediately terminates.

In order to use and access the Service, you must register for an administrative account with us (an “Account”). You can designate users who are authorized to use the Platform through your Account (each, a “User”). When creating your Account and registering Users, you must provide true, accurate, current, and complete information. Only Users are permitted to use the Service, and you shall not make the Service available to any individual or entity other than Users. You remain responsible for any and all use of the Service made by Users under your Account. We are under no obligation to accept any individual or entity as an Account holder or User and may accept or reject any registration in our sole and complete discretion.

Each User will be prompted to create a user name (“User Name”) and a password (“Password”). Each User Name and corresponding Password can be used by only one individual. Each User is responsible for the confidentiality and use of his/her User Name and Password, and you are responsible for any use or misuse of the Service made under your Account. We reserve the right to delete or change any Password or User Name at any time upon notice to you and for any reason and shall have no liability to you for any loss or damage.

Intellectual Property Ownership

We own all right, title, and interest in and to the Service and all related software and technology, including all associated intellectual property rights. No license or other right is granted to you, except for the limited right to access and use the Services as specifically set forth herein. By using the Service, you (i) acknowledge and agree not to contest our proprietary rights in the Service; and (ii) agree not to disclose any confidential information of ours regarding the Service (including the Service itself) or that is otherwise disclosed to you in connection with the Agreement, unless such disclosure is expressly allowed by the Agreement. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Service.

The trademarks, service marks, and logos of the Air Visits Parties (as defined below) (the “Air Visits Trademarks”) used and displayed are our registered and unregistered trademarks or service marks. Other names displayed may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with Air Visits Trademarks, the “Trademarks”). Nothing herein or through the provision of the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Air Visits Trademarks inures to our benefit.

Data

The Service requires Users to provide Patient data (the “Data”) to enable 911 PSAPs to dispatch emergency medical services to Patient locations. Each time Data is provided through the Service, you (i) authorize us to use the Data to provide the Service, which includes transmitting the Data to the 911 PSAPs; (ii) represent and warrant that you have all necessary licenses, rights, consents, and permissions to provide the Data through the Service for use in accordance with the terms herein; (iii) represent and warrant that your provision of the Data through the Service for use in accordance with the terms herein does not violate any privacy or other rights of a third party or any applicable laws, rules or regulations, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (collectively, “Applicable Laws”); and (iv) acknowledge and agree that we may share the Data with Covered Entities (as defined under HIPAA) on your behalf at your instruction or as required by law, and with any non-Covered Entity with whom we have entered into a Business Associate Agreement. Any third parties with whom we share Data pursuant to subsection (iv) above may use the Data to provide their own services pursuant to their own terms of use and privacy policies and procedures, and such services are not a part of or affiliated with the Service.

If you are a Covered Entity (as defined in required under HIPAA) and we are your Business Associate (as defined under HIPAA), then we will enter into a business associate agreement with you, in the form found at [INSERT LINK TO BAA].

Fees

In exchange for use of the Service, you will pay fees in accordance with the subscription plan that you select during the registration process (the “Fees”). The Fees currently consist of a monthly subscription fee (the “Subscription Fee”) which is paid monthly in advance and a usage fee as set forth in the fee schedule available to you during the registration process. We reserve the right to change these fees and/or introduce new fees at any time upon notice to you. All Fees are due within ten (10) days of invoice and are non-refundable. Fees are stated exclusive of taxes, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchase, except for those taxes based on our net income. Should any payment for the Service be subject to withholding tax by any government, you will reimburse us for such withholding tax.

Your subscription will begin on the date on which your Account is ready for use. This date may be later than the date on which you make your first monthly Subscription Fee payment. You hereby consent to make this first monthly Subscription Fee payment in advance of receiving access to and use of the Service. We will keep you updated on the status of your Account, and you will be given access once it is ready for use.

Disclaimers; Limitation of Liability

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE SERVICE WILL OPERATE ERROR-FREE, THAT THE SERVICE IS FREE OF COMPUTER VIRUSES OR SIMILAR CONTANIMATION OR DESTRUCTIVE FEATURES. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

We are a technology vendor, and we do not provide 911 emergency or other medical services. We do not control, nor do we have contractual relationships with, any 911 PSAP. We are not responsible for, AND WILL HAVE NO LIABILITY WITH RESPECT TO, any acts or omissions of any 911 PSAP or other third party.

THE SERVICE IS DEPENDENT ON DATA THAT YOU SUBMIT. THIS DATA IS USED BY THE 911 PSAP TO LOCATE PATIENTS AND PROVIDE 911 SERVICES. YOU ARE SOLELY RESPONSIBLE FOR SUBMITTING ACCURATE AND COMPLETE DATA. WE DO NOT PROVIDE THIS DATA, NOR DO WE REVIEW OR VERIFY ANY OF THIS DATA. WE ARE NOT RESPONSIBLE FOR, AND WILL HAVE NO LIABILITY WITH RESPECT TO, ANY DELAY, ERROR, INJURY, OR DAMAGES RESULTING FROM ANY DATA, INCLUDING, WITHOUT LIMITATION, INACCURATE OR INCOMPLETE DATA, PROVIDED BY YOU OR THROUGH YOUR ACCOUNT.

YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM IS NOT INTENDED TO BE YOUR SOLE METHOD FOR EMERGENCY RESPONSE, AND YOU AGREE TO HAVE ALTERNATIVE PROTOCOLS IN PLACE TO RESPOND TO EMERGENCY SITUATIONS IN THE EVENT THAT THE SERVICE IS UNAVIALBLE.

WE SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN THE PERFORMANCE OF OUR OBLIGATIONS IF PREVENTED FROM DOING SO BY (I) FLOODS, EARTHQUAKES, OR OTHER SIMILAR ELEMENTS OF NATURE OR ACTS OF GOD; (II) PANDEMNIC, VIRUS, RIOTS, CIVIL DISORDERS, REBELLIONS OR REVOLUTIONS IN ANY COUNTRY; (III) POWER BLACKOUT, CABLE CUT, ACTS OF REGULATORY OR GOVERNMENTAL AGENCIES, EXECUTIVE ORDERS, GOVERNMENT SHUTDOWNS, UNAVAILABILITY OF RIGHT-OF-WAY, UNAVAILABILITY OF SERVICES OR MATERIALS UPON WHICH THE SERVICE RELIES, OR (IV) ANY OTHER CAUSE BEYOND OUR REASONABLE CONTROL.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY OR OTHERWISE, AND IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) IN NO EVENT SHALL AIR VISITS OR ITS RELATED ENTITIES OR AFFILIATES, OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, OWNERS, DONORS, AGENTS, OR LICENSORS (REFERRED TO HEREIN COLLECTIVELY AS THE “AIR VISITS PARTIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES, OR ANY OTHER PECUNIARY LOSS OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, EVEN IF AIR VISITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) THE LIABILITY OF THE AIR VISITS PARTIES IN THE AGGREGATE FOR ANY DIRECT DAMAGES SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE FEES THAT YOU HAVE PAID TO AIR VISITS FOR USE OF THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AS SET FORTH ABOVE OR THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION. THEREFORE, SOME OF THE ABOVE DISCLAIMERS OF WARRANTY AND/OR LIMITATIONS ON LIABILITY MAY NOT APPLY TO YOU. NOTHING HERE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

Indemnification

You agree to indemnify and hold harmless all Air Visits Parties for any claims made by a third party against any Air Visits Party from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (i) your use of the Service, (ii) your breach of this Agreement, (iii) your violation of any third-party rights, including without limitation any privacy right, (iv) your violation of any applicable law or (v) any Data. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.

Binding Arbitration

In the event of a dispute arising under or relating to the Agreement or the Service (each, a “Dispute”), you or we may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other parties. IF A PARTY CHOOSES ARBITRATION, NO OTHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT ANY PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the New Jersey. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 10 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.

Class Action Waiver

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Equitable Relief

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights or confidential or proprietary information by you, we will suffer irreparable harm and monetary damages would be an inadequate remedy. We will therefore be entitled to seek relief from a court to restrain you (on a temporary, preliminary or permanent basis) from using or disclosing our intellectual property rights or confidential or proprietary information, or otherwise violating the terms of the Agreement, and any such restraint shall be in addition to (and not instead of) any and all other remedies to which we shall be entitled, including money damages. We will not be required to post a bond to secure against an imprudently granted injunction (again, whether temporary, preliminary or permanent).

Termination and Modification of the Agreement

We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and your access to the Service, at any time and for any reason without prior notice or liability. We reserve the right to change the Agreement from time to time as we deem necessary. We will post such changes and their effective date within the current Agreement, and we will provide you notice of changes via email and/or notice upon login. Your continued use of the Service after any such change will signify your acceptance of the change. If you do not accept any change, your sole and exclusive remedy is to discontinue using the Service. Sections 2-14 shall survive the termination of the Agreement.

Controlling Law

This Agreement will be governed by and construed under the laws of the state of New Jersey without regard to its conflicts of laws principles.

Compliance with Applicable Laws

The Service is based in the United States and is not intended for use outside of the United States. When you register for an account, you must register with a mailing address located in the United States, and you warrant and represent that you are a United States resident (if you register as an individual), or that you are entering into this Agreement on behalf of an entity or organization located in the United States (if you register as an authorized representative on behalf of an entity or organization). We make no claims concerning whether the Service may be appropriate for use outside of the United States. If you access the Service from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

Communications with and Submissions to Us

Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like, we shall be free to use any ratings data, ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of the Service, without compensation or attribution to you.

General

Nothing in this Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer or employee of the other. Neither party shall have, or hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. No failure or delay by either party in exercising any right or remedy under the Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy. The Agreement constitutes the final and complete agreement between you and us regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between us, whether oral or written. You shall not assign the Agreement, or any of your rights or obligations hereunder, without our prior written consent, which we may withhold in our sole discretion. We shall be permitted to freely assign this Agreement, and any of our rights or obligations hereunder, in our sole discretion, without your consent. The Agreement will be binding upon and will inure to the benefit of the legal representatives, successors and permitted assigns of the parties hereto. If any provision of this Agreement should, for any reason, be held invalid, prohibited by law or unenforceable in any respect, such term will not apply. However, the remainder of this Agreement shall be enforced to the full extent permitted by law. Headings are for convenience only and shall not be used to limit or interpret the meaning of any of the provisions of the Agreement.

If you need to contact us for any reason, our contact information is below:

Address: 150 Clove Road, Suite 2

Little Falls, NJ 07424

Email Address: admin@telemedicine911.com

Phone Number: (201) 484-5225

YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND THE ENTITY TO THIS AGREEMENT.

I ACCEPT