LISTENMD FOR MOBILE DEVICES – TERMS OF USEThank you for considering using ListenMD Patients, a healthcare mobile messaging application.

PLEASE READ THESE TERMS OF USE CAREFULLY

BEFORE USING THIS SOFTWARE!

By clicking “I agree,” You are indicating that You agree to be bound by the provisions of these Terms of Service (these “Terms”). If You do not wish to be bound by these Terms, please exit the installation process now and do not download, install, copy or use the Software or the Site.

  1. Definitions
  • Android” means Google’s Android mobile operating system.
  • Google Play Store” means an electronic store and its storefronts branded and owned and/or controlled by Google or an affiliate of Google.
  • Apple” means Apple Inc., a California corporation.
  • Apple Product” means an Apple-branded product that runs the iOS operating system software provided by Apple, such as an iPhone.
  • App Store” means an electronic store and its storefronts branded and owned and/or controlled by Apple or an affiliate of Apple.
  • App” means the ListenMD Patients healthcare mobile health care messaging application and software.
  • IP Rights” means (i) patents, pending patent applications, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, database rights, knowhow and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals in relation to any such rights.
  • ListenMD” means Listen to the Doctor, LLC (dba ListenMD) and its Affiliates. An affiliate means a person or company that controls, is controlled by, or is under common control with Listen to the Doctor, LLC.
  • PIN” means a code You select, which, in combination with your phone number, gives You access to Your User Account.
  • Service” means any ListenMD service provided to You in conjunction with the Software.
  • Site” means ListenMD website where You can request support, view privacy policy and view Terms of services and activate any part of the Service.
  • Software” means the ListenMD software licensed under these Terms to You.
  • Terms of Services” or “Terms” means these Terms of Service.
  • User Account” means the account with Your mobile phone number and PIN that You create for Your use of the Software.
  • PIN” means a selected identification code, which in combination with your phone number, gives You access to Your Private information stored in the clipboard section of the application.
  • You” means you, the end user of the Software and Your organization, if your use of the Software is part of Your organization’s use of the Software.
  1. License and Services
    • Subject to these Terms, ListenMD hereby grants You a limited, personal, revocable, non-exclusive, non­sub-licensable, non-transferable, license to download, install and use the Software on a device that You own or control. ListenMD may offer a free User Account. ListenMD reserves the right, at any time and without any specific requirement to notify you, to change or impose fees for access to and use of the Software and/or the Services.
    • This license does not imply any rights to future upgrades or updates of the Software. However, if ListenMD does provide You with any upgrades or updates to the Software or the Service, such upgrades or updates shall be subject to these Terms or such agreement, if any, which accompanies such upgrades or updates, and may be subject to additional payments.
    • Your license to use the Software is conditional upon your acceptance of these Terms. Following the expiration of any free trial period, you will be required to make payment of Service fees to continue using the Service, Software and Site. This is a service and license agreement and not an agreement for sale of the Software.
    • Except as ListenMD specifically agrees in writing, You shall be solely responsible for the selection, implementation, and performance of any and all third party equipment, software and telecommunication equipment and services, handheld device and computer, with which you choose to operate the Software.
    • You understand and acknowledge that to use the Software on Your Android device, you must maintain valid licenses and permissions applicable to Your Android Product and to any applicable wireless data service.
    • You understand and acknowledge that to use the Service, you must have a data plan with your cellular services provider or a data connection (e.g., Wi-Fi connection).
    • The use of the Services requires You to be a registered ListenMD user and to be authorized by your doctor. You can register for a User Account from by downloading the ListenMD Patients app and request authorization from your doctor. You shall maintain your PIN in confidence and shall not permit third parties to use your PIN under any circumstances. To do otherwise exposes information available to you under your Phone number and PIN to any other such person with access and compromises your privacy.
  1. Your use of the Site, Software and Service. You agree that:
    • You will use the Site, Software and Service only in accordance with these Terms as may be amended from time to time.
    • You will ensure that any information that you provide to ListenMD is true, accurate, current and complete.
    • You will not use or permit any other person to use the Site, Software or Service to transmit harassing, inciting, abusive, libelous, illegal, deceptive, messages or information, or unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for products or services, or messages or information that constitute intellectual property infringement or breach of privacy or publicity rights or moral or attribution rights, or messages or information that knowingly include software viruses, Trojan horses, worms, vandals, spyware and any other malicious applications.
    • You will not use or permit any other person to use the Site, Software or Services to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts.
    • You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Site or Software or Your entitlement to use the Services.
    • You will not undertake, cause, permit or authorize the modification, translation or creation of any other derivative work, reverse engineering, decompiling, disassembling or hacking of the Site or Software or any part thereof except to the extent permitted by law.
    • You will not remove or attempt to remove or circumvent any security measures installed in the Software and the Services.
    • You will cooperate   with ListenMD and provide information requested by ListenMD to assist ListenMD in investigating or determining whether there has been a breach of these Terms or a breach of the laws and industry standards in the United States of America, including but not limited to HIPAA and HITECH and provide ListenMD with access to the premises and device where the Site, Software or Services have been used. ListenMD will have the right to investigate and prosecute violations of these Terms, including intellectual property rights infringement, to the fullest extent of the law. ListenMD may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that ListenMD has no obligation to monitor Your access or any user’s access to or use of the Site, Software or Services, but has the right to do so for the purpose of operating the Site, Software and Services, to ensure users’ compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. BY UTILIZING THE SITE, SOFTWARE A ND/OR SERVICES, YOU CONSENT TO ALLOW LISTENMD TO ACCESS ANY INFORMATION IN YOUR ACCOUNT AND USE YOUR PERSONAL INFORMATION SUBJECT TO THE TERMS OF THE LISTENMD PRIVACY POLICY [HYPERLINK: url of Privacy Policy].
  1. IP Rights
    • Exclusive Ownership: Any and all IP Rights, including patents, copy right, trademark, trade secrets, and other IP rights, in the App, Site and Software are and shall remain the exclusive property of ListenMD and/ or its licensors. Except for the limited rights explicitly granted to you in this license agreement, You do not acquire hereby any IP Rights in the Software, the Services and the documentation, including in any confidential information or trade secrets, in or relating to the Site, Software or Services, or any part thereof. You will not take any action to jeopardize, limit or interfere with ListenMD’s IP Rights. Any unauthorized use of ListenMD’s IP Rights is a violation of these Terms as well as a violation of intellectual property laws, regulations and treaties.
    • No Removal of Notices: You shall not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/ or ListenMD’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to any materials.
    • DMCA notices: ListenMD respects the intellectual property rights of others. Any requests to remove copyright infringing content from the Services, or counter requests to re-post content, on grounds of mistake or misidentification of the content, should be directed to [support@ListenMD.com].
  1. Confidentiality. You acknowledge and agree that ListenMD developed the Software at considerable time and expense. The Software is confidential to and contains trade secrets of ListenMD. You agree to maintain the Software in strict confidence and not to disclose or provide access thereto to any person except to those persons with a need for access to exercise the license rights conferred to You under these Terms.
  1. Privacy and Security: ListenMD is committed to respecting Your privacy and the confidentiality of your personal data. By submitting personal data to ListenMD, including without limitation Your name, mailing address and e-mail address, You consent to the collection, processing, transmission and disclosure of such data by ListenMD for the purposes of ListenMD’s internal use and specifically the purposes for which such information has been requested, such as billing requirements. The Privacy Policy at [HYPERLINK: Url for Privacy Policy] sets out how ListenMD may use your data. ListenMD will comply with data breach laws and industry standards applicable to ListenMD in the United States of America, including but not limited to HIPAA and HITECH. ListenMD and any Affiliates or subcontractors to whom documentation is provided shall maintain a comprehensive data security program, which shall include reasonable and appropriate technical, organizational and security measures against the destruction, loss, unauthorized access or alteration of documentation in the possession of ListenMD or its Affiliates or subcontractors, and which shall be (i) no less rigorous than those maintained by ListenMD for its own information of a similar nature, and (ii) no less rigorous than typical security standards in the industry.
  1. Term and Termination.
    • Effective Date.   These Terms shall be effective when You agree to be bound by these Terms, as manifested by Your clicking on “I Agree.”
    • Termination for Breach. If You breach any provision of these Terms, ListenMD may, in addition to all other rights and remedies provided by these Terms or by law, terminate your permission to use the Software, Site and/or Services. ListenMD will have the right to terminate Your right to use the Software, Site and/or Services if
      • (a)You fail to comply with or perform a term or condition herein, including the failure to pay any Service or license fees when due;
      • (b)You interfere with ListenMD’s customer service or business operations, or
      • (c)You materially contravene any agreement that You may have with ListenMD, including without limitation, these Terms, any other policy of ListenMD applicable to Your use of the Software, Site and/or Services, or otherwise.
    • Termination without breach. In addition, ListenMD may terminate Your right to use the Software, Site and/or Services without any liability whatsoever to You if ListenMD is prevented from providing any portion or all of the Services by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body
    • Termination of Operation. ListenMD may at all times, and in its sole discretion, terminate the operation of the Service, or any part thereof, temporarily or permanently. ListenMD will provide You a prior notice using the e-mail address that You provided upon registration to the Service, within 30 days prior to the termination of the Service.
    • Upon termination of Your rights as provided in this Section, You will cease all use of the Site and Software and ListenMD shall cease to provide the Services, and may block, remove or delete any content from the Service, without maintaining any backup copy.
    • ListenMD shall not have any liability to You arising from or related to the termination of the Service in accordance with this Section, including for any loss of data.
  1. Indemnification. You shall defend, indemnify, and hold harmless ListenMD, ListenMD’s licensor, successors, affiliates agents and assigns (each a “ListenMD Indemnified Party”) from any claims, damages, losses, or expenses (including attorneys’ fees and costs) incurred by any ListenMD Indemnified Party in connection with all claims, suits, judgments and causes of action (i) for infringement of patents or other intellectual property or proprietary rights arising from Your combining with or using any device, system or service in connection with the Software or any portion thereof, (ii) for damages arising from Your breach of these Terms, (iii) for libel, slander, defamation or infringement of any third party IP Right with respect to material transmitted by You using the Software or Services. No remedy herein conferred upon ListenMD is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative.
  1. DISCLAIMER OF WARRANTIES.
    • THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY OR COMPLETENESS, SATISFACTORY QUALITY, AND QUIET ENJOYMENT, OR OTHER WARRANTIES OR CONDITIONS ARISING BY STATUTE, OPERATION OR LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE ARE HEREBY DISCLAIMED. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO USER. LISTENMD DOES NOT WARRANT THAT THE USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WILL BE TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME. THIS WARRANTY DISCLAIMER IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND LISTENMD. LISTENMD WOULD NOT PROVIDE THE SOFTWARE OR SERVICES ABSENT SUCH DISCLAIMER. NO REPRESENTATIONS OR WARRANTIES ARE MADE BY ANY OF LISTENMD ‘S LICENSORS UNDER OR BY VIRTUE OF THESE TERMS.
    • YOU ACKNOWLEDGE AND AGREE THAT LISTENMD AND ITS LICENSORS CANNOT TRANSMIT DATA VIA THE SOFTWARE IF YOUR HANDHELD DEVICE IS UNREACHABLE (I.E. OUT OF CELLULAR COVERAGE, POWERED OFF, ETC.).
    • YOU ACKNOWLEDGE AND AGREE THAT WIRELESS COMMUNICATIONS ARE, BY THEIR NATURE, NOT FAIL PROOF.  LISTENMD DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE SOFTWARE AND SERVICES IN MISSION­ CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS, COMPLIES WITH LAWS, RULES, REGULATIONS AND PROCEDURES APPLICABLE TO THE USE OF CELLULAR SERVICES IN SUCH ENVIRONMENTS.
  1. LIMITATION OF LIABILITY
    IN NO EVENT SHALL LISTENMDBE LIABLE FOR ANY PERSONAL INJURY, AND FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DAMAGES FOR INTERRUPTION OF BUSINESS, LOST DATA, LOST PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHER THEORY, EVEN IF LISTENMD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF LISTENMD ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNT PAID TO LISTENMD IN RESPECT OF THE SOFTWARE OR SERVICES GIVING RISE TO THE CLAIM. LISTENMD SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE SOFTWARE OR SERVICE.
  1. Software and Services availability. The availability and functionality of the Software and Service depend on various factors and elements, including software, hardware and communication networks that are partially provided by third parties. These factors are not fault free. ListenMD makes all reasonable efforts and takes appropriate measures to make sure that the Software and Service operate properly, for example, by maintaining redundancy sites and backup systems that will enable the resumption of the Software and Services within reasonable time after breakdown. However, ListenMD does not warrant or guarantee that the Software and Service will operate without disruption, errors or interruptions, or that they will be accessible or available, timely and accurate at all times.
  1. Assignment. ListenMD may assign its rights and obligations under these Terms without notice to You. You shall not assign your rights or obligations under these Terms without the prior written consent of ListenMD (such consent may be withheld or conditioned at ListenMD ‘s discretion) and any assignment without ListenMD ‘s prior written consent shall be null and void and of no effect.
  1. Notices. All notices required under these Terms will be given as follows: (a) in the case of notices to ListenMD, by certified mail, return receipt requested, to the following address: [7420 NW 5 St, Suite 103, Plantation, FL 33317] telephone number [954-792-0304], e-mail: [support@listenMD@gmail.com]. Such notice will be deemed effective upon receipt by ListenMD; and (b) in the case of notices to You, by e-mail to the e-mail address that You provided to ListenMD upon registering for the Services, such notice to be deemed effective upon the earlier of (i) twenty­ four (24) hours after transmission, or (ii) Your actual receipt of any such e-mail.
  1. Force Majeure. Notwithstanding any other provision of these Terms, neither party shall be deemed in default of these Terms for failure to fulfill its obligations when due to causes beyond its reasonable control. This provision shall not be construed as excusing nonperformance of any obligation by either party to make payment to the other party under these Terms.
  1. Export Restrictions. The Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software as well as end-user, end-use and destination restrictions issued by national governments. You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
  1. General Provisions
    • No Third Party Beneficiaries. Except as otherwise specifically stated in these Terms, the provisions herein are for the benefit of the You and ListenMD and not for any other person or entity.
    • No Waiver. Waiver by You or ListenMD of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default.
    • Survival. The terms, conditions and warranties contained in these Terms that by their sense and context are intended to survive the performance hereof by either or both parties shall so survive the completion of performance, cancellation or termination of these Terms.
    • Governing Law and Dispute Resolution. These Terms is to be construed under the laws of the State of Florida, excluding any body of law governing conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to these Terms. Any disagreement or dispute arising out of or relating to these Terms, or the breach thereof which the parties are unable to resolve after good faith negotiation, shall be submitted first to the upper management level of the parties. You and ListenMD, through our respective upper management level representatives shall meet either face-to-face or online within thirty (30) days of the dispute being referred to them and if we are unable to resolve such disagreement or dispute within thirty (30) days of meeting, such disagreement or dispute shall be exclusively settled by final and binding arbitration to be conducted in Fort Lauderale, FL in accordance with the Commercial Rules of the American American Arbitration Association. You and ListenMD shall each appoint one arbitrator, and the two arbitrators shall jointly appoint a third arbitrator. You and ListenMD shall each bear one half of the costs associated with the arbitration proceedings.
    • Severability. If a provision of these Terms is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Terms, but rather (unless a failure of consideration would result therefrom) the entire Terms shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of each party shall be construed and enforced accordingly.
    • Entire Agreement.           These Terms constitute the entire agreement between You and ListenMD with respect to the subject matter hereof. You acknowledge that You have not relied on any statements or representations made by or on behalf of ListenMD in agreeing to enter into these Terms. ListenMD reserves the right to make changes to these Terms by providing You with reasonable notice of the change by either e-mail (as contemplated by the Notice provision above) or by posting notice of the change at [HYPERLINK TO TS AND CS] If You continue to use the Site or Software more than thirty (30) days after notice of the change has been given, You shall be deemed to have accepted this change.