LUMA HEALTH END USER TERMS AND CONDITIONS
(In addition to the terms and conditions under the Master Agreement with NextGen Healthcare, these additional terms are applicable for the use of any “Powered by Luma” offerings. To the extent there is a conflict between these terms and the terms in the Master Agreement, these terms shall prevail solely as it relates to the applicable “Powered by Luma” offering.)
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1.1 Applicable Law. Customer represents and warrants that it will comply with, and use the Services only as allowed by applicable laws, regulations and industry standards, including but not limited to the Telephone Consumer Protection Act of 1991 (“TCPA”), the Telemarketing Sales Rules (“TSR”), CAN SPAM Act, Do-Not-Call Implementation Act. This includes obtaining requisite consent before messaging individuals, including clear opt-out and unsubscribe information and maintain a do-not-call list.
1.2 Restrictions. Except as expressly set forth herein (including without limitation, as required for Customer to perform its obligations and/or exercise its rights hereunder), Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying structure, ideas or algorithms of the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or software; except as expressly permitted herein, use the Services or software for timesharing or service bureau purposes; except as expressly permitted by the functionalities of the Services, run or use any processes that run or are activated while Customer is not logged on to the Services or that “crawl,” “scrape,” or “spider” the Services; or use the Services or software in any manner that (1) is fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise contrary to applicable law (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of Luma Health, or (3) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other malicious computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs). Luma Health may suspend Customer’s access to the Services in the event the foregoing representation and warranty is breached.
2. Indemnification; Disclaimers; Limitation of Liability; Miscellaneous.
2.1 Customer will defend, indemnify and hold harmless Luma Health, its affiliates and their employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Claims”) arising from or relating to Customer’s data, Customer’s use of the Services, Customer’s alleged or actual violation of any law, rule, or regulation, payment processing errors or any payment related claims, any claims brought against Luma Health by Customer’s end users, and/or Customer’s alleged infringement, violation or misappropriation of any third party intellectual property or proprietary right. Customer will not settle any Claims without Luma Health’s prior written consent.
2.2 Luma Health will have no liability for any claims, losses, or damage caused by errors or omissions in Customer data or any actions taken by Luma Health at Customer’s direction.
2.3 LUMA HEALTH NOR THROUGH ITS RESELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. LUMA HEALTH DISCLAIMS ANY WARRANTY THAT THE SERVICES, OR THE THIRD PARTY SERVICES WHICH THE SERVICES RELY ON, WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. LUMA HEALTH FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT AS TO MERCHANTABILITY, DATA LOSS, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT LUMA HEALTH IS NOT A HEALTH CARE PROVIDER, THAT THE SERVICES DO NOT CONSTITUTE MEDICAL ADVICE, AND THAT LUMA HEALTH IS NOT RESPONSIBLE FOR (I) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF CONTENT ANY OTHER DATA OR INFORMATION ACCESSED OR PROVIDED THROUGH THE SERVICES, (II) THE PERFORMANCE OF THE SERVICES VIS A VIS ANY INTERACTIONS WITH CUSTOMER’S ELECTRONIC HEALTH RECORD SYSTEM OR OTHER TECHNOLOGY INFRASTRUCTURE, AND (III) THE CARE OF ANY PATIENT OR THE PRACTICE OF MEDICINE.
2.4 IN NO EVENT WILL LUMA HEALTH BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT WILL LUMA HEALTH’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED THE LESSER OF $10,000 OR FEES PAID BY CUSTOMER IN THE THREE (3) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.