GENERAL TERMS AND CONDITIONS

 

In consideration of the mutual promises, covenants and obligations set forth in the Agreement, the Parties hereby agree to the following terms and conditions (“General Terms and Conditions”) that shall be a part of the Agreement and shall be further govern the Parties’ rights and obligations. 

 

1. PRICING CHANGES. If MedServ Marketplace desires to increase its pricing for Services beyond the three percent (3%) annual adjustment otherwise allowed by the Agreement, it shall notify Client in writing of the new proposed price adjustment; Client shall then have the option of objecting to the proposed new pricing by sending MedServ Marketplace notice within thirty (30) days. If no objection is received, the new pricing will become effective during the first full month following the date of MedServ Marketplace’s written notification to Client of the price adjustment. By accepting Services and/or MedServ Marketplace Equipment at the new pricing, Client consents to the new pricing for the remainder of the applicable term. If Client timely objects to the pricing change, then Client or MedServ Marketplace may terminate the Agreement upon thirty (30) days written notice to the other.

 

2. COLLECTION. In the event of a payment default by Client, and MedServ Marketplace brings an action to recover sums due and payable under the Agreement, Client agrees that MedServ Marketplace shall be entitled to recover, in addition to damages due for non-payment of sums due under the Agreement, its reasonable attorneys’ fees, costs, and prejudgment and post judgment interest as allowed by law. 

 

3. FORCE MAJEURE. 

1. Definition. The term “Force Majeure” as used in this Agreement shall mean events and circumstances beyond the reasonable control of a Party, including but not limited to acts of war, emergency, terrorism, bioterrorism, governmental preemption in connection with a National Emergency, fire, unavoidable casualties, abnormal weather conditions, Acts of God; disease, pandemics (including, without limitation, delays arising out of the spread of COVID-19, such as, without limitation, delays in the responsiveness of, or the unavailability of, governmental authorities to grant permit applications or signoffs or to perform inspections, or the unavailability of required meetings of governmental agencies necessary to act to grant any approvals); any rule, order or regulation of any department or subdivision thereof of any government agency enacted after the date of this Agreement that prevents a Party from performing its obligations under this Agreement; delays caused by a governmental entity not attributable to the fault of the applicable Party; delays of utility companies not caused by the fault of the applicable Party or unusual delays in the supply or delivery of materials or equipment not caused by the applicable Party. Unless otherwise set forth in Section 3(c) below, the non-payment of money by either Party or a failure attributable to a lack of funds on the part of either Party shall not be excused or delayed by a Force Majeure event or circumstance.
2. Notice. In the event a Party is delayed in performance of its obligations by a Force Majeure event or circumstance defined above, such Party shall send written notice of such event or circumstance to the other Party at discovery of Force Majeure event.
3. Extent of Excused Performance. A Party’s performance shall be excused and suspended for such period of time that performance is delayed as a direct result of such Force Majeure event or circumstance.

 

4. CONFIDENTIAL INFORMATION. Each Party agrees not to use, disclose, sell, license, publish, reproduce, or otherwise make available the Confidential Information of the other Party except and only to the extent necessary to perform under the Agreement. Each Party agrees to secure and protect the other Party’s Confidential Information in a manner consistent with the care and protections given to its own confidential and proprietary information. Each Party also agrees to take appropriate action by instruction or agreement with its employees, consultants or other agents who are permitted to access the other Party’s Confidential Information to satisfy its obligations hereunder. “Confidential Information” means a: 

1. Party’s information that is not generally known by the public and includes, but is not limited to: (i) a Party’s internal personnel, financial, marketing, and other business information and manner or method of conducting its business; (ii) a Party’s strategic, operations and other business plans and forecasts; and (iii) a Party’s pricing, margins, equipment lease rates and customer contact information. 
2. Notwithstanding, Confidential Information does not include any information that was (i) in the receiver’s possession before receipt from the disclosing Party; (ii) is or becomes a matter of public knowledge through no fault of the receiving Party; (iii) is rightfully received by the receiving Party from a third-party without a duty of confidentiality; (iv) is disclosed by the disclosing Party to a third-party who does not have a duty of confidentiality; or (v) is independently developed by the receiving Party. 

5. NON-SOLICITATION OBLIGATION. MedServ Marketplace has a significant investment in recruiting, screening, and training personnel. In recognition of that investment, Client agrees that it will not directly or indirectly recruit or solicit MedServ Marketplace personnel. Should Client hire, employ, or contract with MedServ Marketplace personnel during the Agreement Term or within one (1) year after Services have been terminated, Client will be liable for a payment to MedServ Marketplace of ten thousand dollars ($10,000.00) in liquidated damages per employee hired, employed, or contracted, payable immediately upon demand by MedServ Marketplace.

 

6. INDEPENDENT CONTRACTOR. It is expressly agreed that MedServ Marketplace shall be an independent contractor under the Agreement and that the relationship between Client and MedServ Marketplace shall not constitute a partnership, joint venture, or create any agency relationship. Neither Party shall have the authority to make any statements, representations, or commitments of any kind, or take any action, which shall be binding on the other Party, without the express prior written consent of the other Party. 

 

7. NO INTENDED BENEFICIARIES. This Agreement is exclusively for the benefit of the Parties hereto, and there are no intended third-party beneficiaries to it. However, if any third-party claims to be an intended beneficiary entitled to sue under the Agreement, and a court determines that such legal status exists (or may exist) despite the express intentions of the Parties, then such third-party’s rights under the Agreement shall be subject to all such promises, terms and conditions as have been agreed to between Client and MedServ Marketplace, including the Limitation of Liability set forth in the Agreement. 

 

8. PLACING ORDERS FOR SERVICES. By placing an order for MedServ Marketplace’s Services, Client warrants that it is legally capable of entering into binding contracts. If Client desires to place an order for Services, Client may be asked to supply certain information relevant to Client’s order including, without limitation, Client’s name, Client’s email, Client’s phone number, Clients credit card number, the expiration date of Client’s credit card, Client’s billing address, and Client’s shipping information. Client represents and warrants that: (i) Client has the legal right to use any credit or debit card(s) or other payment method(s) in connection with any order for Services; and that (ii) the information Client supplies to MedServ Marketplace is true, correct and complete. By submitting such information, Client grants MedServ Marketplace the right to provide the information to payment processing third parties for purposes of facilitating the completion of Client’s order.

 

9. EQUIPMENT AND LABOR LIMITED WARRANTY.

• Equipment and Parts

1. All equipment and parts provided by MedServ Marketplace carry the manufacturer warranty only. MedServ Marketplace may use reconditioned parts in making repairs or services.  

• Labor and Service

1. Labor and service performed by MedServ Marketplace holds a thirty (30) day warranty from the date of service. Client understands that Client will pay the current rate (the applicable trip charge and hourly fee) for service requests after the initial thirty (30) day warranty period for any additional work unless an additional service plan has been purchased. 
1. This limited warranty is the only warranty MedServ Marketplace makes, is made only with respect to the portions of the Services originally installed by MedServ Marketplace, and takes the place of all other warranties whether express or implied. NO EXPRESS OR IMPLIED WARRANTIES EXTEND BEYOND THE FACE OF THIS AGREEMENT. MEDSERV MARKETPLACE MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MedServ Marketplace does not promise that the Services cannot be compromised or that they will always provide the intended result. If a court decides MedServ Marketplace has given Client any implied warranty, it will extend only for the length of the limited warranty period. Some states do not allow limitations on how long an implied warranty lasts or the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Client. This limited warranty gives Client specific legal rights. Client may also have other legal rights that vary from state to state.
2. Client acknowledges and agrees that no contractor, subcontractor, supplier, service provider or other vendor of MedServ Marketplace makes any warranty, including any implied warranty, other than such express warranties as may be provided by such person to Client in writing.

 

10. AVAILABILITY, ERRORS, AND INACCURACIES. MedServ Marketplace is constantly updating its offerings of Services. The Services may be mispriced, described inaccurately, or unavailable, and MedServ Marketplace may experience delays in updating information regarding its Service and in its advertising on other websites. Although MedServ Marketplace attempts to ensure the integrity and accuracy of its website and Services, it makes no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the website and content thereon. It is possible that the website could include typographical errors, inaccuracies, or other errors and that unauthorized additions, deletions, and alterations could be made to the website by third parties. In the event that an inaccuracy arises, please inform MedServ Marketplace so that it can be corrected. MedServ Marketplace reserves the right to unilaterally correct any inaccuracies on the website without notice. Information contained on the website may be changed or updated without notice. Additionally, MedServ Marketplace shall have no responsibility or liability for information or content posted to the website from any non-MedServ Marketplace affiliated third party.

 

11. MEDSERV MARKETPLACE EQUIPMENT OWNERSHIP. 

1. Client agrees to use MedServ Marketplace Equipment only for the Services pursuant to this Agreement and only on the Premises. 
2. MedServ Marketplace may inspect, remove and/or change MedServ Marketplace Equipment at MedServ Marketplace’s discretion at any time the Services are active or following the termination of Service. 
3. Client agrees that MedServ Marketplace’s addition, removal, change or update to MedServ Marketplace Equipment may interrupt Client Service. Client may not sell, lease, abandon, or give away MedServ Marketplace Equipment. At Client request, MedServ Marketplace may relocate MedServ Marketplace Equipment. Client understands and acknowledges that if Client attempts to install or use MedServ Marketplace equipment or Services at a location other than the Premises, the Services may fail to function or may function improperly. 
4. Client agrees that Client will not allow anyone other than MedServ Marketplace, its agents, or other Company Related Parties to service MedServ Marketplace Equipment. 
5. MedServ Marketplace suggests that MedServ Marketplace Equipment in Client possession be covered by Client insurance. Client will be directly responsible for loss, repair, replacement and other costs, damages, fees and charges if Client do not return MedServ Marketplace Equipment to MedServ Marketplace in an undamaged condition upon the termination of Service. 
6. MedServ Marketplace Equipment, including any firmware or software embedded in, or “downloaded” from time to time to, MedServ Marketplace Equipment or used to provide the Services, are protected by trademark, copyright, patent and/or intellectual property laws and international treaty provisions. Client is granted a revocable license to use such firmware and software in object code form (without making any modification thereto) strictly in accordance with this Agreement. Client acknowledges and understands that Client is not granted any other license to use the firmware or software embedded in MedServ Marketplace Equipment or used to provide the Services. Client expressly agrees that Client will use MedServ Marketplace Equipment exclusively in connection with the Services. Client shall not take any action nor allow anyone else to take any actions that will reverse compile, disassemble, reverse engineer, or otherwise attempt to derive the source code from the binary code of the firmware or software. 

 

MEDSERV MARKETPLACE STRONGLY RECOMMENDS THAT CLIENT READS THE OWNER’S MANUAL FOR ALL EQUIPMENT, WHICH CLIENT CAN OBTAIN ON CLIENT OWN THROUGH THE MANUFACTURER’S WEBSITE. THE OWNER’S MANUAL CONTAINS VERY IMPORTANT INFORMATION SUCH AS OPERATING INSTRUCTIONS AND EQUIPMENT TESTING AND MAINTENANCE INFORMATION. CLIENT SHOULD ALSO READ ALL INSTRUCTIONS, WARNINGS AND OTHER INFORMATION ON THE EQUIPMENT ITSELF.

12. INSURANCE. Client is responsible for obtaining all insurance coverage necessary to protect Client’s business, belongings, and persons in or on Client Premises, including coverage for personal injury and property damage. The payments Client makes under this Agreement are not related to the value of the Premises, Client possessions, or the persons occupying or at any time present in or on the Premises, but rather are based on the cost of the Services and take into consideration the protections afforded to Client under this Agreement. Client hereby releases MedServ Marketplace and its Company Related Parties from any liability for any event or condition covered by insurance, including without limitation commercial general liability insurance, business insurance, and any comprehensive automotive liability insurance. Client understands that the Services provided under this Agreement are designed to reduce, but not eliminate, certain risks. MedServ Marketplace does not guarantee that the Services will prevent personal injury, property loss or damage, fire loss or damage and smoke damage to the Premises. MedServ Marketplace and the Company Related Parties assume no liability for those risks. Client understands that unlimited and complete protection of person and property by MedServ Marketplace is not feasible.

 

IN CASE OF ANY THIRD-PARTY CLAIM OR LOSS COVERED BY CLIENT INSURANCE, CLIENT AGREES NOT TO LOOK TO MEDSERV MARKETPLACE FOR REIMBURSEMENT. CLIENT WAIVES ANY RIGHTS THAT CLIENT INSURANCE CARRIER OR OTHERS CLAIMING THROUGH CLIENT MAY HAVE AGAINST MEDSERV MARKETPLACE, INCLUDING ANY RIGHTS OF SUBROGATION.

 

13. LIMITATION OF LIABILITY. 

1. Client acknowledges that neither MedServ Marketplace nor its affiliates, nor any of its or their agents, representatives, suppliers, service providers, contractors or subcontractors, is an insurer of or against any potential or actual loss or damage to person or property that may occur in or at the premises, whether as a result of burglary, theft, fire, smoke, carbon monoxide poisoning, physical harm to any person, entry in or onto the premises, the conduct of any persons in or on the premises, equipment installation (if applicable) or otherwise. Client acknowledges that the payments Client makes under this Agreement are not related to the value of the Premises, Client possessions, or the persons occupying or at any time present in or on the premises, but rather are based on the cost of the Services and take into consideration the protections afforded to MedServ Marketplace under this Agreement. MedServ Marketplace expressly denies and disclaims all liability for any loss or damage which may occur prior to, at or after signing this Agreement. This includes liability based on contract, tort, negligence of any degree (including gross negligence), warranty (including merchantability and fitness for a particular purpose) and all other theories of liability. If MedServ Marketplace or any of its affiliates, or any of its or their agents, representatives, suppliers, service providers, or subcontractors (including any company related parties) are found liable for any loss or damage due to its or their negligence or the failure to perform its or their obligations under this agreement in any respect at all, the maximum liability (including joint and several liability) will be one thousand dollars ($1000.00). MedServ Marketplace may assume a greater liability upon Client’s request, but only for an additional charge agreed upon by Client and MedServ Marketplace in a writing signed by MedServ Marketplace’s president or its designee. If MedServ Marketplace does so, a rider to this Agreement must be signed by Client and MedServ Marketplace. Under no circumstance shall MedServ Marketplace’s agreement to increase its limit of liability be construed or interpreted to hold it or its agents, representatives, suppliers, service providers, or subcontractors (including company related parties) as insurers. This limitation of liability specifically covers liability for: lost profits; lost or damaged property; loss of use of property or the premises; governmental fines and charges; and the claims of third parties. Also covered by this limitation of liability are the following types of damages: direct, indirect, special, incidental, consequential (damages that result from an act, including punitive damages. 
2. The limitations of liability set forth in this paragraph apply to any acts, omissions, and negligence of MedServ Marketplace, its affiliates, (and their respective officers, employees, agents, suppliers, service providers, and subcontractors, including company related parties, or representatives), which, but for this section, may give rise to a cause of action in contract, tort or under any other legal theory. Some states do not allow the limitation or exclusion of liability for incidental of consequential damages, so the above limitation or exclusion may not apply to Client and Client may also have other legal rights that vary from state to state.
3. Client expressly acknowledges that MedServ Marketplace shall not have any liability for damages caused to persons or property that occurs because MedServ Marketplace, its employees, subcontractors, agents, etc. followed Client’s instructions, directives, policies, or procedures. 

14. INDEMNIFICATION BY MEDSERV MARKETPLACE. Subject to the limitations set forth in the Agreement, MedServ Marketplace shall defend, indemnify, and hold harmless Client from and against claims, losses, damages, causes of action, suits, liabilities, and judgments, including all expenses of litigation, court costs, and reasonable attorneys’ fees, for bodily injury, death or damage to or destruction of property, that Client may sustain, to the extent substantially related to the Services described herein and caused by the willful misconduct of MedServ Marketplace. 

 

15. INDEMNIFICATION BY CLIENT. Client shall defend, indemnify, and hold harmless MedServ Marketplace from and against any and all claims, losses, damages, causes of action, suits, liabilities, and judgments of every kind and character, including all expenses of litigation, court costs, and reasonable attorneys’ fees, for any claims, suits, judgments and causes of action that is: (i) brought by any third-parties or alleged third-party beneficiaries; or (ii) proximately caused by the negligence or willful misconduct of Client. Notwithstanding, Client’s duty to indemnify MedServ Marketplace does not apply to claims based on injuries to third-parties or to their property which were caused solely and directly by the willful misconduct of MedServ Marketplace or its employees, subcontractors, agents, etc.

 

16. SUBCONTRACTING. MedServ Marketplace in its discretion may subcontract all or some of its performance under the Agreement. Client shall have no responsibility for payment to subcontractors, and MedServ Marketplace shall indemnify, defend, and hold Client harmless from any and all subcontractor claims or demands for payments. If Client reasonably determines that any such subcontractor or subcontractor’s agents or employees are unsatisfactory or unqualified to perform the work subcontracted to them, then Client shall so notify MedServ Marketplace in writing and request that the subcontractor and/or its agents or employees be removed forthwith and replaced by MedServ Marketplace. MedServ Marketplace reserves the right to make decisions regarding hiring and terminating subcontractors. 

 

17. DEFAULT. 

1. An event of default shall occur if either Party fails to perform any covenant or observe any term or condition of the Agreement, including the obligation to make timely payment. Upon occurrence of any default under the Agreement which continues uncured for thirty (30) days after written notice of such default is sent by the non-defaulting Party to the defaulting Party, the non-defaulting Party may withhold further performance under the Agreement until such default has been cured or, at its option, immediately terminate the Agreement. 
2. In the event MedServ Marketplace terminates the Agreement based upon an uncured default, or Client terminates this agreement without cause before the end of the then current Term, then MedServ Marketplace shall be entitled to take possession of all MedServ Marketplace equipment from Client and Client agrees to pay damages in the amount of all monthly fees and charges owed under the Agreement for the remainder of the Initial Term or Renewal Term, as applicable, together with the reasonable costs of removing all of MedServ Marketplace Equipment, if any.

 

18. DISPUTE RESOLUTION. The Parties agree that, before any formal legal action is commenced, any dispute between the Parties shall be the subject of a meeting between management representatives authorized to negotiate, in good faith, a mutually acceptable resolution of such dispute. The Parties agree to seek appropriate escalation of the dispute within thirty (30) days of the dispute being raised. If these efforts are not successful, either Party shall have the right to pursue available remedies at law or equity as allowed by the Agreement and the General Terms and Conditions. 

 

19. CHOICE OF LAW/VENUE. The Agreement shall be governed by the laws of the State of Washington, without regard for any state conflicts of law provisions (including those of the State of Washington). The Parties further agree that the exclusive venue for any dispute arising out of, or relating to, the Agreement shall be the Court of competent jurisdiction in Seattle, Washington and each Party hereby irrevocably waives any objections to the jurisdiction thereof, including personal jurisdiction. 

 

20. WAIVER OF JURY TRIAL. To the full extent allowed by Washington law, each Party waives any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or related to this Agreement; each Party acknowledges that this mutual waiver was a condition precedent to it entering into the Agreement.

 

21. TIME LIMITATION ON LAWSUITS. Client must bring any claim arising out of this Agreement or related to the Services, against MedServ Marketplace within one (1) year after the date on which the claim arose or the shortest duration permitted under applicable law if such period is greater than one (1) year. If Client does not, Client waives, to the extent permitted by law, all rights Client may have with respect to such claim and MedServ Marketplace shall NOT have any liability to Client with respect to that claim.

 

22. INCIDENT REPORTING/PRESERVATION OF EVIDENCE. Client agrees to notify MedServ Marketplace of any injuries or damage to persons or property that Client becomes aware of, and which has not previously been reported to Client by MedServ Marketplace. The notification shall occur no later than twenty-four (24) hours after Client becomes aware of the incident. Thereafter, Client shall take immediate steps to preserve all relevant evidence of the incident, including video, incident logs, reports, communications, and any other electronically stored information; such evidence shall be preserved until such time as Client and MedServ Marketplace mutually agree in writing that it may be destroyed or deleted.

 

23. SURVIVAL. All terms and conditions of the Agreement, which by their nature are intended to survive termination or expiration of the Agreement, shall so survive termination or expiration of the Agreement.

24. WAIVER. No failure or delay in requiring strict compliance with any obligations under the Agreement (or in the exercise of any right or remedy provided herein) and no custom or practice at variance with the requirements hereof shall constitute a waiver or modification of any such obligation, requirement or right or remedy or preclude exercise of any such right or remedy or the right to require strict compliance with any obligation set forth in the Agreement. No waiver of any default or any right or remedy with respect to such default shall preclude, affect, or impair enforcement of any right or remedy provided herein with respect to any subsequent default. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. 

25. CHANGES TO THESE TERMS AND CONDITIONS. MedServ Marketplace reserve the right, at its sole discretion, to modify or replace these General Terms and Conditions at any time. If a revision is material, MedServ Marketplace 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 MedServ Marketplace’s sole discretion. By Client continuing to access or use MedServ Marketplace’s Services after those revisions become effective, Client agrees to be bound by the revised terms. If Client does not agree to the new terms, in whole or in part, Client shall provide written notice to MedServ Marketplace.

 

26. DISCLAIMERS. YOU UNDERSTAND AND AGREE THAT MEDSERV MARKETPLACE SITE AND ANY SERVICES, CONTENT, OR INFORMATION CONTAINED ON OR PROVIDED BY MEDSERV MARKETPLACE SITE IS PROVIDED ON AN “AS IS” BASIS. MEDSERV MARKETPLACE DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE OR ANY MERCHANDISE, INFORMATION, OR SERVICE PROVIDED THROUGH THE SERVICE. IN ADDITION, MEDSERV MARKETPLACE DOES NOT GUARANTEE THAT USE OF MEDSERV MARKETPLACE SITE WILL BE FREE FROM TECHNOLOGICAL DIFFICULTIES INCLUDING, BUT NOT LIMITED TO, UNAVAILABILITY OF INFORMATION, DOWNTIME, SERVICE DISRUPTIONS, VIRUSES, OR WORMS. YOU UNDERSTAND THAT YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ACCURACY OF DATA INPUT AND OUTPUT.

 

27. NO MEDICAL ADVICE. Nothing contained, expressed or implied in MedServ Marketplace’s website or Services is intended as nor shall be construed as medical advice. No doctor-patient relationship is established between MedServ Marketplace and Client by reason of Client’s use of the website or under any circumstances whatsoever. Individual inquiries about medical issues, or sensitive or confidential matters should be addressed to appropriate health care professionals.

 

28. NO LEGAL ADVICE. Nothing contained, expressed, or implied in MedServ Marketplace’s website is intended as, nor shall be construed or understood as, legal advice, guidance, or interpretation. No attorney-client relationship is established between MedServ Marketplace and Client by reason of Client’s use of the website or under any circumstances whatever. The information on this website if for general informational purposes only. If you have questions about any law, statute, regulation, or requirement expressly or implicitly referenced in this website, you should contact your own legal counsel.

 

29. CONFIDENTIALITY. Please be advised that the confidentiality of any communication or material transmitted to MedServ Marketplace via [insert website] or Internet electronic mail cannot be guaranteed, including personal information such as your address or social security number. To ensure private and personalized attention, you may also contact MedServ Marketplace by telephone at 425-224-6783, or write to us at MedServ Marketplace, 2503 238th Ct NE, Sammamish, WA - 98074.

 

30. SIGNATURES AND AUTHORITY. The Agreement may be executed by exchange of signature pages by facsimile and/or or other electronic signature in a manner agreed upon by the parties hereto and/or in any number of counterparts, each of which shall be an original as against any party whose signature appears thereon and all of which together shall constitute one and the same instrument. The individuals executing the Agreement for the respective parties represent that they have full power and authority to enter into the Agreement and that it is binding.

 

31. CLIENT’S FEEDBACK TO MEDSERV MARKETPLACE. Client assigns all rights, title and interest in any feedback (including but not limited to reviews, ratings, etc.) Client provides MedServ Marketplace. If for any reason such assignment is ineffective, Client agrees to grant MedServ Marketplace a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such feedback without restriction.

 

32. ASSIGNMENT. Neither party may assign its rights, duties, or obligations under this Agreement without the prior written consent of the other party, except that MedServ Marketplace may assign this Agreement (including any statements of work, amendment or addendums thereto) and any of its rights and obligations under this Agreement, without the prior written consent of Client, in connection with any assignment or transfer of all or substantially all of its business (whether by sale of assets, sale of stock, merger or consolidation or by operation of law or otherwise). Subject to the foregoing, this Agreement, and the rights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors and assigns.

 

33. NOTICE. Any notice permitted or required under the Agreement shall be in writing and shall be deemed to have been duly given by personal delivery upon such delivery, upon receipt of telecopy or facsimile with proof of transmission, on the first business day following delivery by overnight courier, or on the third business day following deposit in the United States Mail, certified or registered, return receipt requested, postage prepaid and addressed as set forth on the signature page of the Agreement unless subsequently changed in writing by either party on their own behalf. 

34. MISCELLANEOUS. 

 

1. This Agreement any other documents incorporated herein by reference and all related exhibits and schedules, constitutes the sole and entire agreement of the parties to the Agreement with respect to the subject matter contained therein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. 
2. This Agreement is for the sole benefit of the parties hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. 
3. If any term or provision of this Agreement is invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision. 
4. The Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.