This Subscription Agreement (“Agreement”) is made and entered into immediately upon acceptance of its terms and conditions by you, or immediately upon your use of the Services, as defined below, and is between you and IT Health Technologies, LLC, a New Jersey limited liability company (“IT HealthTech”).
IT HealthTech provides IT Managed Services solutions.
You desire to use the Services pursuant to the terms and conditions in this Agreement.
You and IT HealthTech hereby agree as follows:
1. Changes. From time to time IT HealthTech may update the terms and conditions of this Agreement without notice. If you elect not to accept the new terms and conditions, then IT HealthTech may, in its sole discretion, immediately terminate this Agreement, discontinue providing the Services, and refund to you the amount of money that you have prepaid for Services that you have not received on the date you elect not to accept the new terms and conditions. Your use of the Services after an update of the terms and conditions of this Agreement shall constitute your consent to such changes.
2. Trial. IT HealthTech may allow you to use the Services without charge for 30 days or another amount of time as determined solely by IT HealthTech (“Trial Period”). During the Trial Period you will not incur any Charges, as defined in Section 3. At the end of the Trial Period, if you have not converted your account to a paying account by providing a Payment Mechanism (as defined in Section 4), IT HealthTech will delete your account and all data associated with your account. The Trial Period ends immediately at the end of the time period specified by IT HealthTech or when you provide a Payment Mechanism, whichever is earlier.
3. Services and Charges. In consideration of the payment of Charges, as defined below, IT HealthTech will provide the Services to you, subject to the terms and conditions of this Agreement. “Charges” means the monthly fees applicable to the particular Services you have elected to receive from IT HealthTech. You have either agreed to pay on a per order basis (“Order Payment”) or a flat monthly fee (“Flat Fee”). If you have agreed to Order Payment then for all Services that you receive you will be billed one month in arrears, each month, based on the number of orders for the previous month. If you have agreed to pay a Flat Fee, then for all Services that you receive you will be billed one month in advance, each month, on the day that you initially registered for the Services. If you cancel the Service you will be immediately billed for the Services you have used that you have not already paid. You will not receive a refund or credit for a partial month when you cancel the Service. All Charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes owed by IT HealthTech.
4. Payment Terms. You shall pay IT HealthTech for all Charges through credit card, Bank Account, google checkout, or similar payment mechanism that IT HealthTech accepts (“Payment Mechanism”). You agree to provide IT HealthTech the expiration date and other information requested by IT HealthTech pertaining to the Payment Mechanism, and you hereby authorize IT HealthTech to charge the Payment Mechanism for all Charges applicable to your purchase of the Services provided pursuant to this Agreement. Upon cancellation or expiration of your Payment Mechanism, you agree to immediately provide a new Payment Mechanism and other information requested by IT HealthTech pertaining thereto. If IT HealthTech provides payment terms to you, you agree to pay all Charges in accordance with such payment terms. If you have not paid all sums due IT HealthTech in accordance with the terms hereof, a monthly finance charge equal to the lesser of (a) 1.5% per month, or (b) the highest amount permitted by law, shall accrue and be payable each month until paid in full. Furthermore, upon your failure to make payment in accordance with the terms hereof, a late fee of ten percent (10%) of the amount past due shall be due and payable by you with respect to each such late payment. The waiver of a finance charge, late fee or any portion thereof shall not be deemed to be a waiver of any future finance charges or late fees. You shall be liable to IT HealthTech for any and all costs and expenses incurred by IT HealthTech, including without limitation attorneys’ fees and expenses, in collection of any past due amounts hereunder.
5. Limitations. As a condition of using the Services you represent and warrant that you will not use the Website or Services for any illegal or unauthorized purpose, and your use of the Website and Services will not violate any laws in your jurisdiction (including but not limited to copyright laws).
6. CAN-SPAM compliance. If you are using the Services that provide email messaging, you agree that your use of the email messaging Services will comply with the CAN-SPAM act and related regulations codified in 15 U.S.C. 7701-7713 and 16 CFR 316 et. seq., as amended from time to time. You agree not to use deceptive transmission information, subject lines, or email content in your use of the email messaging Services. Further, you agree not to remove or disable the opt-out code contained in the email messaging Services and to honor any opt-out requests. IT HealthTech has placed instructions in the screens that enable your use of the email messaging Service which are designed to facilitate your compliance with CAN-SPAM. You agree to comply with such instructions.
7. Technical Support. IT HealthTech agrees to provide technical support to you as long as you have paid all Charges owed under this Agreement.
8. Termination. If you choose to cancel your subscription, you must terminate your use of the Services by canceling your subscription within your account dashboard via the Website. IT HealthTech may terminate your use of the Services and deny you access to the Website at any time for any reason. If your use of the Services is terminated any Content stored by IT HealthTech will be deleted immediately and your user name and password will be immediately disabled. Any Content deleted by IT HealthTech because of the termination of your use of the Services cannot be retrieved.
9. Network Modifications; Price Changes. IT HealthTech reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website or Services (or any part thereof) with or without notice. Charges of all Services, including but not limited to fees for monthly Services, are subject to change upon 30 days’ notice from IT HealthTech. Such notice may be provided at any time by posting the changes to the Website. IT HealthTech shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Website.
10. Disclaimer of Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE WEBSITE ARE PROVIDED “AS IS”, AND IT HEALTHTECH AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SERVICES AND WEBSITE (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), AS WELL AS ANY WARRANTIES THAT THE SERVICES (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE. IT HealthTech does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable or that any errors in the Website or Services will be corrected.
11. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall IT HealthTech be liable under any theory of liability for any consequential, indirect, incidental, special, punitive or exemplary damages of any kind (“Consequential Losses”), including, without limitation, Consequential Losses arising from loss of profits, revenue, data or use, or from interrupted communications or damaged data or Content, or from any defect or error or in connection with your acquisition of substitute goods or services or from malfunction of the Services, or any such Consequential Losses arising from breach of contract or warranty or from negligence or strict liability, even if IT HealthTech or any other person has been advised or should know of the possibility of such Consequential Losses, and notwithstanding the failure of any remedy to achieve its intended purpose. IT HealthTech’ entire liability under any provision of this Agreement is limited to, in IT HealthTech sole decision, the repair or replacement of the Services or Website, or an amount equal to the Charges paid under this Agreement.
12. Indemnification. You agree to indemnify, defend and hold harmless IT HealthTech, and the officers, directors, employees, agents, contractors, subsidiaries, affiliates, or parent companies of IT HealthTech (each an “Indemnified Person”) from any loss, cost, expense (including attorney’s fees, expert’s fees, and expenses), demand, claim, liability, damages or cause of action of any kind or character (collectively referred to as “Claim”), including without limitation, for any personal injury or death, in any manner arising out of or relating to your, or your officers, directors, employees, agents, assigns, invitees, or other users using the Services under your user name and password, whether authorized or not (i) violating or otherwise breaching of any provision of this Agreement, (ii) acts or omissions in the conduct of your business, (iii) negligence, recklessness or intentional misconduct, and (iv) violation of any and all laws, rules or regulations. You further agree to indemnify, defend and hold each Indemnified Person harmless from any Claim, including without limitation, for any personal injury or death, in any manner arising out of or relating to IT HealthTech’ refusal to provide Services to you for any reason. These obligations will apply even if such lawsuit or other claim arises out of an Indemnified Person’s negligence, gross negligence, failure to perform duties under this Agreement, strict liability, failure to comply with any applicable law, or other fault. This provision shall survive the termination of this Agreement.
13. Third Parties. Through the Services IT HealthTech provides integration to various e-commerce tools provided by third parties as indicated on the Website (collectively, “Third Parties”). Any copyright or trademark rights are retained by their respective Third Party owners, and any copyrighted images of Third Parties on the Website are used solely for informational purposes. IT HealthTech is not an authorized distributor of any Third Party products. IT HealthTech is an independent company and is in no way affiliated with any of the Third Parties. You understand and acknowledge this disclaimer, and will not construe any information, data, images, or representations from IT HealthTech or the Website as having any affiliation with the Third Parties. If the e-commerce tools provided by Third Parties do not work or provide accurate information then the Services IT HealthTech provides will not work correctly.
14. Data Processing Addendum.
If you are using IT HealthTech to process the personal data of European Union citizens, then the Data Processing Addendum attached to this Agreement is hereby incorporated into this Agreement by reference and applies to the processing of all personal data by IT HealthTech.
15. Miscellaneous.
(a) No Third Party Beneficiaries. Nothing contained in this Agreement will be deemed to create, or be construed as creating, any third party beneficiary right of action upon any third party.
(b) Waiver. No party will be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of the waiving party. No waiver by either party of any provision hereof will constitute a waiver of such provision on any other occasion.
(c) Assignment. This Agreement is not assignable by you except upon the prior written consent of IT HealthTech. Any unauthorized assignment of this Agreement is void. IT HealthTech may assign this Agreement, in whole or in part, or subcontract its obligations under this Agreement, in whole or in part, without notice to you and upon such assignment, IT HealthTech shall be released from all liability hereunder.
(d) Severability. The invalidity or unenforceability, in whole or in part, of any provision, term, or condition hereof will not affect the validity or enforceability of the remainder of such provision, term, or condition or of any other provision, term, or condition.
(e) Notices. Except as specifically provided in this Agreement, all notices required hereunder shall be in writing and shall be given by personal delivery, electronic mail, overnight courier service, first class mail postage prepaid, at the parties’ respective addresses set forth herein, or at such other address(es) as shall be specified in writing by such party to the other party in accordance with the terms and conditions of this Section. All notices shall be deemed effective upon personal delivery, or upon delivery if sent by electronic mail, or one business day following deposit with any overnight courier service, or three business days following deposit with the U.S. Postal System, first class postage attached, in accordance with this Section. Notices to you shall be sent to the address provided when you registered for the Services. Notices for IT HealthTech shall be sent to 6923 Nubbin Ridge Dr., Knoxville TN 37919.
(f) Governing Law. The terms and conditions of this Agreement are governed by and construed in accordance with the laws of the State of Tennessee, USA without resort to its conflicts of laws. The application of the United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and does not govern or apply to the terms and conditions of this Agreement.
(g) Jurisdiction and Venue. The parties hereby irrevocably submit to the jurisdiction of the state courts of the State of Tennessee and to the jurisdiction of the United States District Court for the Eastern District of Tennessee, for the purpose of any suit, action, or other proceeding related to, arising out of or based upon this Agreement or in any way related to, arising out of or involving the Services or Website; waive and agree not to assert by way of motion, as a defense, or otherwise, in any such suit, action, or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action, or proceeding is brought in any inconvenient forum, that the venue of the suit, action, or proceeding is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court; and waive and agree not to seek any review by any court of any other jurisdiction which may be called upon to grant an enforcement of the judgment of any such Tennessee state or federal court. The parties hereby consent to service of process by registered mail at the address to which notice is to be given. The exclusive venue for any proceeding under this Agreement shall be solely in any state court in Knox County, Tennessee, or the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee. You acknowledge that the prices for Services offered under this Agreement are in part dependent on your consent to jurisdiction in Tennessee and exclusive venue in Knox County, Tennessee, and without your consent to this jurisdiction and venue provision the prices for Services would be higher.
(h) Headings. The headings of the Sections of this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
(i) Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior oral or written agreements between the parties. This Agreement may not be amended unless such amendment is in writing and signed by all parties hereto.
If you have any questions about this Agreement please contact IT HealthTech at help@ithealthtech.com