ONLINE MEDICAL EVALUATIONS

ONLINE MEDICAL EVALUATIONS PURCHASE AND MASTER SERVICES AGREEMENT

Acknowledgment

This document – in addition to the Terms and Conditions listed here – are the Terms and Conditions governing the use of this Service and the agreement that operates between You and the Company. These Terms and Conditions set out the rights and obligations of all users regarding the use of the Service. Your access to and use of the Service is conditioned on Your acceptance of and compliance with these Terms and Conditions. These Terms and Conditions apply to all visitors, users and others who access or use the Service. By accessing or using the Service You agree to be bound by these Terms and Conditions. If You disagree with any part of these Terms and Conditions then You may not access the Service. You represent that you are over the age of 18. The Company does not permit those under 18 to use the Service. Your access to and use of the Service is also conditioned on Your acceptance of and compliance with the Privacy Policy of the Company. Our Privacy Policy describes Our policies and procedures on the collection, use and disclosure of Your personal information when You use the Application or the Website and tells You about Your privacy rights and how the law protects You. Please read Our Privacy Policy carefully before using Our Service.

Your Information

If You wish to place an Order for Products available on the Service, You may be asked to supply certain information relevant to Your Order including, without limitation, Your name, Your email, Your phone number, Your credit card number, the expiration date of Your credit card, Your billing address, and Your shipping information. You represent and warrant that: (i) You have the legal right to use any credit or debit card(s) or other payment method(s) in connection with any Order; and that (ii) the information You supply to us is true, correct and complete. By submitting such information, You grant us the right to provide the information to payment processing third parties for purposes of facilitating the completion of Your Order.

Order Cancellation

We reserve the right to refuse or cancel Your Order at any time for certain reasons including but not limited to:

• Products availability
• Errors in the description or prices for Products
• Errors in Your Order

We reserve the right to refuse or cancel Your Order if fraud or an unauthorized or illegal transaction is suspected. Purchaser Cancellation and Refunds for online medical evaluations are non-cancellable and non-refundable, including any unused online medical evaluations. Charges for Additional Online Medical Evaluations Mobile Health’s respirator fit testing platform allows your employees to perform their required medical evaluation. If you exceed your purchased total of Online Medical Evaluations, you agree to be invoiced for additional medical evaluations and remit payment within 30 days of receiving the invoice.

Availability, Errors and Inaccuracies

We cannot and do not guarantee the accuracy or completeness of any information, including prices, product images, specifications, availability, and services. We reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

Prices Policy

The Company reserves the right to revise its prices at any time prior to accepting an Order. The prices quoted may be revised by the Company subsequent to accepting an Order in the event of any occurrence affecting delivery caused by government action, variation in customs duties, increased shipping charges, higher foreign exchange costs and any other matter beyond the control of the Company. In that event, You will have the right to cancel Your Order.

Payments

Payment can be made via credit card such as Visa, MasterCard, American Express, etc. Payment cards (credit cards or debit cards) are subject to validation checks and authorization by Your card issuer. If we do not receive the required authorization, we will not be liable for any delay or non-delivery of Your Order.

Intellectual Property

Mobile Health and our Online Medical Evaluation system and all related material, marks, features, and functionality are and will remain the exclusive property of the Company and its licensors.  The Service is protected by trademark. Our trademarks may not be used in connection with any product or service without the prior written consent of the Company.

United States Legal Compliance

You represent and warrant that (i) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (ii) You are not listed on any United States government list of prohibited or restricted parties.

Severability and Waiver

Severability

If any provision of these Terms is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

Waiver

Except as provided herein, the failure to exercise a right or to require performance of an obligation under these Terms shall not effect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.

Changes to These Terms and Conditions

We reserve the right, at Our sole discretion, to modify or replace these Terms at any time. If a revision is material We will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at Our sole discretion. By continuing to access or use Our Service after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, please stop using the website and the Service.

Contact Us

If you have any questions about these Terms and Conditions, You can contact us at: askfitkit@mobilehealth.com

Contractual Obligations

1. FEES AND PAYMENT TERMS.

1. Fees. Client shall pay Mobile Health fees as follows in exchange for said goods and services:

Online Medical Evaluations	COST
Online Medical Evaluations with custom weblink	$30 each, sold in blocks of 25
Additional Online Medical if purchaser exceeds their pre-purchased allotment.	$30 each, billed monthly

Upon purchase and receipt of payment, Mobile Health Will:

• Create and make medical evaluation link available to client via a client specific URL within 2 business days.
• Review all submitted medical evaluations within a 72-hour period.

2. REPRESENTATIONS AND WARRANTIES

1. Each Party represents and warrants that (i) it has the power and authority to enter into this Agreement and to fully perform its obligations hereunder, (ii) this Agreement has been executed by its duly authorized representative, and (iii) it is under no contractual or other legal obligation that would interfere in any way with the full, prompt, and complete performance of its obligations pursuant to this Agreement.
2. Both parties agree that Mobile Health is an independent contractor, and nothing in this Agreement will be deemed to place the parties in the relationship of employer-employee, principal-agent, partners, or joint venturers. Mobile Health will be responsible for paying the payroll taxes and withholdings, employment taxes and workers compensation for its employees.
3. Mobile Health represents and warrants that it has all licenses, permits and authorizations required for the performance of Services under this Agreement.
4. Mobile Health shall comply with all laws applicable to the performance of the Services hereunder.

3. INDEMNIFICATION Client Indemnity. To the maximum extent allowed by law, Client will indemnify, defend, and hold harmless Mobile Health and its shareholders, directors, officers, employees, and agents (the “Mobile Health Indemnitees”), from and against any and all expenses (including reasonable attorneys’ fees), judgments, fines, penalties, losses, claims, actions by any local, state or federal agency, damages, liabilities, interest incurred or amounts paid in settlement (where there is no admission or judicial finding of liability) (collectively referred to as “Claims”), that the Mobile Health Indemnitees may suffer or incur arising out of or in connection with: (a) Client’s negligence, willful misconduct, or breach of any representation, warranty, or other obligation under this Agreement; (b) any personal injury (including death) or damage to property resulting from Client’s or its clients’ or its or their agents’ acts or omissions; or (c) any law, regulation or other requirement relating to wages and/or benefits of any employee of Client under state law, federal law, local law or any other authority. The Mobile Health Indemnitees will give prompt notice of any Claim to the Client, and the Client will defend the Mobile Health Indemnitees at the Mobile Health Indemnitees’ request. Mobile Health reserves the right to employ counsel at its own expense and participate in the defense and/or settlement of any Claim.

4. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING AND ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL MOBILE HEALTH BE LIABLE TO CLIENT FOR ANY DAMAGES OR OTHER LIABILITY ARISING OUT OF OR RELATING TO ANY LAW, REGULATION OR OTHER REQUIREMENT RELATING TO WAGES AND/OR BENEFITS OF ANY EMPLOYEE OF CLIENT UNDER STATE LAW, FEDERAL LAW, LOCAL LAW OR ANY OTHER AUTHORITY.

5. CONFIDENTIAL INFORMATION

1. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” means the information and documentation of a party that (1) has been marked “confidential” or with words of similar meaning at the time of disclosure by the entity disclosing the information; (2) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing entity and marked “confidential” or with words of similar meaning; (3) with respect to information of a party, whether marked “confidential” or not, includes but is not limited to information regarding business plans (strategic and tactical) and business operations, information regarding administrative, financial, or marketing activities; pricing and fee information, personnel information, products and/or service offerings (including specifications and design), processes (e.g., technical and logistical), and any other information or data that would appear to a reasonably prudent person to contain proprietary or confidential information of a party, or any Confidential Information derived from information of a party. The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the receiving party without an obligation of confidentiality; (ii) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (iii) obtained from a source other than the disclosing party without an obligation of confidentiality; or (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving party).
2. Obligation with Respect to Confidential Information. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep such information confidential.

6. NO PHYSICIAN/PATIENT RELATIONSHIP. This Agreement does not intend to establish a physician/patient relationship between Mobile Health and any individual for which the Client requests services.

7. FORCE MAJEURE. Neither party shall be liable for defaults or delays due to any causes (including but not limited to strikes, wars, acts of sabotage or terrorism, or natural disasters, acts of civil or military authorities, accidents, delays in carriers) that are beyond its control and that are not due to its fault or negligence. Each party shall notify the other in case of a force majeure occurrence within five (5) days after the beginning thereof. The time for performance will be extended for a period equal to the Force Majeure event, but in no event longer than thirty (30) days, and the party receiving notice may, by providing notice to the other party, extend the time for performance, or cancel all or any unperformed part, of this Agreement.

8. In the event that any provision of this Agreement is subject to an interpretation under which it would be void or unenforceable, such provision will be construed so as to constitute it a valid and enforceable provision to the fullest extent possible, and in the event that cannot be so construed, it will, to that extent, be deemed deleted and separable from the other provisions of this Agreement, which will remain in full force and effect and will be construed to effectuate the purpose of this Agreement to the maximum legal extent.

9. GOVERNING LAW AND VENUE. This Agreement and performance hereunder shall be governed by and construed in accordance with the substantive laws of the State of New York, excluding its conflict of law rules. The venue for any judicial proceeding will lie exclusively in the state and federal courts of New York County, New York. Each of the parties hereby submits to the jurisdiction of such courts. If You have any concern or dispute about the Service, You agree to first try to resolve the dispute informally by contacting the Company.

10. HEADINGS AND PRESUMPTIONS. The headings of the sections of this Agreement are provided for convenience only and may not be used to limit or construe the contents of this Agreement. As the Agreement is a negotiated agreement, no presumption against either party exists on the basis that it was responsible for preparing this Agreement or any part of it.