Warranties, Liabilities, Indemnification & General Terms

For subscribers of the VineMeds Consulting Test Drive Agreement, in addition to the terms identified within the agreement document, the parties hereto agree the following terms, also linked from the agreement:

WARRANTIES
1. Services. VineMeds warrants that (i) in performing the Services, VineMeds will comply with all descriptions and representations as to the Services and the System set forth in this Agreement and with all laws, rules and regulations applicable to VineMeds.
2. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, THE SERVICES AND SYSTEM ARE PROVIDED “AS IS” AND VINEMEDS HEREBY DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. VINEMEDS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, VINEMEDS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, SYSTEM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
LIMITATIONS OF LIABILITY
1. Limitation of Liability. IN NO EVENT WILL VINEMEDS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER VINEMEDS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL VINEMEDS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO VINEMEDS UNDER THIS AGREEMENT. Customer may not assert any cause of action against VineMeds more than six (6) months after such cause of action has occurred.
INDEMNIFICATION
1. Indemnification by Customer. Customer shall indemnify and hold VineMeds, its officers, employees, and agents harmless against any losses, claims, damages, judgments, liabilities or expenses (including reasonable counsel fees and expenses) resulting from or arising out of (a) a claim that the Customer’s data, or any use of the Customer’ data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; (b) Customer’s or its employees’ or agents’ (i) negligence or willful misconduct; (ii) use of the Services or System in a manner not authorized by this Agreement; (iii) use of the Services or System in combination with data, software, hardware, equipment or technology not provided by VineMeds or authorized by VineMeds in writing; or (iv) modifications to the Services or System not made by VineMeds; or (c) a breach by Customer of any representations, warranties, covenants, or obligations hereunder. Customer may not settle any third-party claim against VineMeds unless VineMeds consents to such settlement, and further provided that VineMeds will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
GENERAL
1. Governing Law. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Florida and the parties consent to the exclusive jurisdiction and venue of the State and Federal Courts of and located in the County of Collier and State of Florida. The Florida State Courts or Federal Courts shall have the sole and exclusive jurisdiction for any disputes.
2. Independent Contractor. It is expressly understood that VineMeds and Customer are independent contractors of one another, and that neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both parties hereto.
3. Counterparts. This Agreement may be executed in counterparts, including, by electronic means, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.