Terms of Service for NexGenic Products

Last modified April 3, 2015

NexGenic, LLC, is a California limited liability company that facilitates health information communication in compliance with governing laws and regulations, including without limitation those protecting the privacy and security of health information (also referred to herein as “NexGenic”, “we”, “us”, and “our”), as described on NexGenic.com (the “Site”).

1.  DEFINITIONS

The following terms shall have the respective meanings set forth below:

“Annex Server” means a physical or virtual computer server that has the capability to store encrypted medical record packages and can be hosted on a local network or on the Internet. It is controlled and maintained by the Provider or by a designated service vendor.

“Electronic Protected Health Information (ePHI)” means any protected health information that is covered under Health Insurance Portability and Accountability Act of 1996 (HIPAA) security regulations and is produced, saved, transferred or received in an electronic form.

“Health Insurance Portability and Accountability Act of 1996 (HIPAA)” means the administrative regulations promulgated under the provisions of this act, including the Privacy Rule and the Security rule.

“ImageInbox®” means a computer network service where Registered Users can send and receive medical imaging data and related reports to other networked accounts.

“Medical Records” means your documented health information, including medical images.

“NexGenic” means NexGenic, LLC., a California-based limited liability company whose principal place of business is at 31225 La Baya Dr., Suite 200, Westlake Village, CA 91362 (“We/Us/Our”). The company facilitates health information communication in compliance with governing laws and regulations, including without limitation those protecting the privacy and security of health information.

“Providers” mean healthcare providers such as hospitals, imaging centers and clinics as well as individual physicians who offer healthcare and medical services. NexGenic is not affiliated with any Provider.

“Registered Users” means an individual or Provider organization that is authorized to use the Services (e.g. has elected to supply their name, email, address, user-ID, password, address and payment information (as applicable)).

“Registered User Agreement” means a legally binding Agreement between NexGenic and Registered Users of our Services.

“Service” or “Services” means, collectively, NexGenic products, software, and services.

“Supported Platform(s)” means the storage providers currently supported by the Services, including Google Drive, as described via the Site.

“You” or “Your” means the individual, company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity.

“Your Data” means all electronic data, medical images, or information transferred by you through the use of the Services.

2.  TERMS AND CONDITIONS

These Terms of Service (the “Agreement”) apply to visitors of our Site as well as Registered Users of our Services, including free trial versions. This version of the Agreement supersedes previous versions.

BY ACCEPTING THIS AGREEMENT, EITHER BY VISITING THE SITE OR ACTUALLY USING THE SERVICES, YOU AGREE TO BE LEGALLY BOUND BY (A) THE TERMS OF SERVICE CONTAINED IN THIS AGREEMENT, INCLUDING ANY AND ALL FUTURE AMENDMENTS; (B) ANY AND ALL APPLICABLE LAWS, WHETHER FOREIGN OR DOMESTIC AS THEY APPLY TO THE PROVISIONS OF THE SITE AND THE SERVICES; AND (C) ANY AND ALL TERMS THAT GOVERN THE USAGE BY NEXGENIC OF THE SITE AND SERVICES WHICH ARE INCORPORATED HEREIN BY REFERENCE IN THE ATTACHED EXHIBITS. DEFINITIONS FOR TERMS ARE FOUND IN THIS TERMS OF SERVICE AGREEMENT AND THE ATTACHED EXHIBITS.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS OF SERVICE, IN WHICH CASE THE TERMS “YOU”, “YOUR”, OR “PARTY” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT, AND MAY NOT REGISTER A USER ACCOUNT OR USE THE SERVICES.

Please review this Agreement carefully. Please also review our Patient Privacy Policy or Provider Privacy Policy, as applicable, which explain how our Services treat your personal data and protect your privacy. By using our Services, you are accepting this Agreement and our Patient Privacy Policy or Provider Privacy Policy, as applicable.

2.1  Registered User Representations

By using NexGenic Services, you agree to, and acknowledge, the following: 

A. You give permission to NexGenic to electronically transfer Medical Records and you specifically request NexGenic to disclose these to Registered Users you authorize when using our Service.

B. You understand that all Providers using our Services are independent entities and not employees or agents of NexGenic. You acknowledge that NexGenic urges you to seek the advice of your physician or other health care provider if you have any questions or concerns arising from your medical records. We do not make any representations or warranties about any Provider’s individual training, education, professional background or skill.

C. You acknowledge that NexGenic maintains a database of Registered Users including your Registration information. This database is self-populated by the respective Registered User and NexGenic is not responsible for the misrepresentation by a Registered User.

D. You acknowledge that you are solely responsible for choosing a Provider to share your Medical Record information with facilitated by our Services.

E. You understand that Registered Users have the right to refuse your request to send Medical Records to them.

F. You represent that you are thirteen (13) years of age or older if you are using our Services to send or receive Medical Records.

G. You represent that if you are the parent or guardian of a minor, you may use the Services and enter into a User Agreement on behalf of the minor. By doing so, you represent and warrant that you have the legal capacity to act on behalf of such minor; and you acknowledge and agree, in such capacity, that all provision of this Agreement (and User Agreement, if applicable) that are applicable to you are equally applicable to such minor.

H. You confirm that registering for the Services doesn’t violate any applicable law(s) in the country from which you access or use our Services.

YOU AGREE THAT YOU HAVE THE AUTHORITY, UNDER THE LAWS OF THE STATE OR JURISDICTION IN WHICH YOU RESIDE OR FROM WHICH YOU USE THE SERVICES, TO PROVIDE THESE REPRESENTATIONS. IN CASE OF BREACH OF ANY ONE OF THESE REPRESENTATIONS, NEXGENIC HAS THE RIGHT TO SUSPEND OR TERMINATE YOUR ACCOUNT AND REFUSE ANY AND ALL CURRENT OR FUTURE USE OF THE SERVICES (OR ANY PORTION THEREOF) AND YOU WILL DEFEND AND INDEMNIFY NEXGENIC AND ITS AFFILIATES AGAINST ANY LIABILITY, COSTS, OR DAMAGES ARISING OUT OF THE BREACH OF THE REPRESENTATION.

2.2  Account Termination

You or NexGenic may suspend or terminate your access to the Services at any time, for any reason. When closing an account, we retain limited registration information related to your order history (e.g., name, contact, and transaction data) for accounting and compliance purposes. NexGenic has the right to refuse access and use of our Services to any person, agency or organization. NexGenic reserves the right to change, suspend or discontinue all or part of the services provided, temporarily or permanently, without prior notice.

3.  SERVICES

3.1 ImageInbox®

The ImageInbox service provides Registered Users medical image and report transfer capabilities. It is a Registered User self-directed service. Registration information contains required and optional information such as: first and last name, user-ID (e.g. email address), password, phone number and email for authentication and communication. The current information requested by NexGenic for registering a user account can be found in both the mobile and Java Runtime Environment (JRE) ImageInbox App’s. By registering a user-ID, the user agrees to provide the registration information to NexGenic for the purpose of using the Services. NexGenic will only use this information for providing Services to the Registered User community.

When creating a Registered User account, you will be asked to expressly consent to the current Terms of Service and applicable Privacy Policy by checking a box or clicking on a button with terms such as “I accept”. If any additional agreement(s) is/are entered into between NexGenic and a Registered User (e.g. a Registered User Agreement), in the event of a conflict between the terms of your Registered User Agreement and this Agreement, the terms of your Registered User Agreement shall control. 

Upon successful User Registration, medical records information can be sent and received from any Registered User and Provider. All exchange activities require the explicit consent of the sender of the information prior to transfer. NexGenic only provides the technical capability to securely transfer Medical Record information, and is not responsible and not liable for any use of the Service by either sender or recipient of the information.

3.1.1 ImageInbox® Java Application

Utilizing the ImageInbox Java Application on the Registered User’s desktop computer enables the user to access and store Medical Record copies (including ePHI), and performs the Services described above in section 3.1.

3.1.2 ImageInbox® Patient Mobile Applications

Utilizing the ImageInbox mobile applications (iOS, Android, etc.) on the Registered User’s mobile device enables the user to access and store encrypted Medical Record copies (including ePHI), and performs the Services described above in Section 3.1.

3.1.3 ImageInbox® Patient Request for Release of Health Information

A patient can utilize the Java or mobile applications (app) to request the release of their health information (request). Information in the app about the patient identity and information about health information at the provider have to be submitted by the patient. When the patient sends a request using the app, the request is performed in accordance with the following terms:

  • The request shall become effective immediately and shall remain in effect until revoked by the patient, who can do so by contacting the provider in writing.

  • The patient has a right to receive a copy of the request, and can do so by contacting the provider in writing.

  • The patient may revoke a request for release of health information at any time, and can do so by contacting the provider in writing. 

  • No treatment, payment, enrollment, or eligibility for benefits will be conditioned on the patient providing or refusing to provide the request.

3.2 NexGenic Annex Server

The NexGenic Annex Server is an optional computer appliance available to Providers upon purchase. Comparable to an email server, the NexGenic Annex Server provides intermediary encrypted data storage, supporting the Provider’s ImageInbox Service (incoming and outgoing images and data) and serves Registered Users that are patients of the Provider (outgoing images and data separated by patient). This server can access encrypted Medical Record copies (including ePHI) and functions as a store-and-forward hub. The NexGenic Annex Server is typically deployed in the Providers DMZ network and communicates directly with the Registered User and Provider ImageInbox Apps using SSL secured communications.

3.3  ImageInbox Express

ImageInbox Express is an optional software module available to Providers, which enables rapid web-based image CD-ROM upload, storage and image display within the Providers local area network (LAN).

3.4  Third-Party Products and Services

The ImageInbox app and service may enable or assist you to access, interact with, and/or purchase services from Supported Platforms and other third parties via third-party websites or applications (collectively, the “Third-Party Services”). When you access the Third-Party Services, you do so at your own risk. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party (e.g. Google Drive), and not NexGenic. NexGenic makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party.  

4.  SERVICE CONTINUITY

NexGenic services are constantly monitored to ensure proper functionality and continuity. We follow best software service practices regarding issue resolution as outlined below in our description of the three classes of service interruptions that may impact normal operations.

4.1 Planned Service Outage By NexGenic

NexGenic will inform Registered Users in advance about such outages that can occur for software/hardware upgrades on our infrastructure or for maintenance purposes. Such outages are brief (30 minutes of planned downtime) and will primarily be performed between Saturday at 10:00 PM to Sunday at 10:00 AM Pacific Standard Time. Most maintenance is done without any service outage. 

4.2 Unplanned Service Outage By NexGenic

NexGenic will imminently work to resolve such issues, but services can be interrupted for more than 30 minutes depending on the nature and cause of the interruption, such as due to network or systems interruption under our supervision. NexGenic will inform affected Registered Users about the occurrence of such interruption and will provide continuing expected resolution times until the service outage is resolved.

Issues that are classified under the category of unplanned service outages are supported by NexGenic according to the following issue resolution guidelines:

Severity Category 1

Definition: Fatal = Errors preventing all useful work from being done

Time to Respond = 30 minutes

Time to Resolution = 4 hours

Severity Category 2

Definition: Severe Impact = Errors which disable major functions from being performed

Time to Respond = 1 hour

Time to Resolution = 8 hours

Severity Category 3

Definition: Degraded Operations = Errors disabling only certain non-essential functions

Time to Respond = 2 hours

Time to Resolution = 48 hours

Severity Category 4

Definition: Minimal Impact = Includes all other performance issues raised by Client

Time to Respond = 2 hours

Time to Resolution = 72 hours 

4.3 Planned/Unplanned Service Outages By Registered User

These are interruptions to normal system operations that occur under your supervision and when/if this occurs please contact your IT support or check for network outage in your area with your Internet Service Provider (ISP). NexGenic will work with the Registered User to obtain a resolution ETA from their ISP and to ensure service continuation is resolved expeditiously according to our issue resolution guidelines.

5. LICENSE OF SERVICES

Subject to this Agreement, we hereby grant you a limited, revocable, non-transferable and non-exclusive license to use the software, network facilities, content and documentation provided via our website, downloaded from our servers or from a third-party App-Store, and only to the extent necessary to access and use our Services in accordance with this Agreement.

Further, because ImageInbox is a patient-first application, health care Providers are prohibited under this License from charging any additional fees or amounts to use our Services to a patient, either directly or to a patient’s health plan program, Medicare or Medicaid program, regardless if those related services are covered under the patient’s health plan, the Medicare program or a state Medicaid program. In summary, Provider’s are prohibited from up-charging patients for use of the Services. This does not apply to any healthcare services (e.g. consultation) rendered by the Provider for a patient or Provider.

The license granted herein does not permit you to:

A. modify, translate, reverse engineer, disassemble, decompile or create derivative works of our software, Services and intellectual property or allow a third party, whether directly or indirectly (including, but not limited to the direct or indirect use of wizards, agents, bots, or other utilities), to modify, translate, reverse engineer, disassemble, decompile or create derivative works of our software, Services and intellectual property;

B. transfer, assign, distribute, sell, lease, rent, disclose or provide access to our Services to any third party;

C. use the Services for any purpose that is unlawful or in any manner that contravenes this Agreement;

D. use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other Registered User use of the Services;

E. attempt to probe, scan or test the vulnerability of our Services, or of the system or network supporting our Services, or circumvent any security or authentication measures;

F. attempt to disrupt the operation of our business through use of methods, including, but not limited to: viruses, Trojan horses, worms, time bombs, denial of service attacks, flooding or spamming; or

G. engage in any activity other than those expressly permitted in these Terms of Services and your Registered User Agreement.

6.  COMPLIANCE WITH HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA) 

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) was enacted to protect electronic data pertaining to patient identification and health, and standardize the process of data interchange. Under these regulations, any Covered Entity that maintains electronic protected health information (ePHI) must conform to technical safeguards, including technology, policy and procedures for use, that protect ePHI and control access to it.  

NexGenic does not access, store or maintain Medical Records of Registered Users.

Therefore, under the definitions of the HIPAA Rules set forth in 45 CFR 160.103, NexGenic is not part of a HIPAA-defined Covered Entity, nor is it a clearinghouse for a Covered Entity. As such, NexGenic does not require establishing a Business Associate Agreement with a Covered Entity.  

DISCLAIMER: HIPAA compliance of activities between Registered Users utilizing the Services are the sole responsibility of the Registered Users engaging in these activities.

7.  FREE TRIALS

Services available on a trial basis are free of charge until the end of the trial period. Any data you enter into the Services during your free trial may be lost at the end of the trial period and NexGenic is not responsible for any liabilities as a result of lost data. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. 

8.  INFORMATION AVAILABILITY IN NETWORK

Providers are listed in the network directory accessible by Registered Users. The entries in the directories are self-populated by Registered Users. As such they may not be accurate or comprehensive. The purpose of the directory is for self-guided search for organizations providing services.

NexGenic cannot be held responsible for inaccurate representation of self-populated information by Providers. It is in the discretion of the Registered User how to make use of the information provided through these services.  

9.  LIMITATIONS 

9.1 Service Limits

You acknowledge and agree that while the Services may not currently have set resource limits, NexGenic may set such limits at any time, at our discretion.

9.2 NexGenic Does Not Provide Health Care Services

NexGenic is not a provider of health care services and will take no part in your medical diagnosis and/or treatment. Neither NexGenic nor any of our agents shall be liable for any professional advice or services obtained from a Provider you enlisted while using our Services. NexGenic is not endorsing any Provider. You acknowledge that your reliance on any Providers who are Registered Users is solely at your own risk and you assume full responsibility for all risk associated therewith, as allowable by the extent of the law.

Do not use these Services for your emergency medical needs.

If you experience a medical emergency, call 9-1-1 immediately.

9.3 User Requirements

In order to use the Services, you must obtain Internet access, either directly or through devices that access web-based content, and pay any service fees associated with such access and use of the Services. You are solely responsible for paying such fees. In addition, you must provide all equipment necessary to make such Internet connection, including computer technology, as required.

9.4 Operation and Record Retention

We reserve complete and sole discretion with respect to the operation of our Site or Services. We may, among other things, withdraw, modify, suspend or discontinue any functionality or feature of our Site or Services at any time without notice. We reserve the right to maintain, delete or destroy all communications and materials posted or uploaded to our databases or otherwise provided to us pursuant to our internal record retention and/or destruction policies as long as such is not prohibited by law.

9.5 External Links

Areas of the NexGenic website may contain links to third-party web sites. Please note that when you click on any of these links, you are entering another website for which we have no responsibility or control. The inclusion of any link does not imply affiliation, endorsement or adoption by us of the linked site or any medical or other information contained therein. We encourage you to read the terms and conditions, data-gathering practices and privacy policies of all inked sites as they may materially differ from ours. You agree that we shall not be responsible for any loss or damage of any sort incurred as a result of any such links or as the result of the presence of such links on this site. It is up to you to take precautions to ensure that whatever linked material you select is free of items such as viruses, worms, Trojan horses and other destructive items.

10.  INDEMNIFICATION

Without limiting the generality or effect of other provisions of this Agreement, as a condition of use of our Services, you agree to indemnify, hold harmless, and defend NexGenic, and its licensors and suppliers and their parents, subsidiaries, affiliates, suppliers and their officers, directors, affiliates, subcontractors, agents and employees (collectively, “Indemnified Parties” and each, individually, an “Indemnified Party”) against all costs, expense, liabilities and damages (including reasonable attorney’s fees) incurred by any Indemnified Party in connection with any claims arising out of: (i) your use of our Services; (ii) your use of Supported Platforms and other third parties via third-party websites or applications; (iii) your failure to comply with any applicable laws and regulations; and (iv) your breach of any of your obligations set forth in this Agreement. You shall not settle any such claim without the written consent of the applicable Indemnified Party.

In the event of any problem with our Site or Services, you agree that your sole remedy is to cease using our Site and Services. Under no circumstances shall NexGenic be liable in any way for your use of any Service or content we provide including, but not limited to, any errors or omissions in any content, any infringement by any content of the intellectual property rights or other rights of third parties, or for any loss or damage of any kind incurred as a results of the use of any content or Services.

Under no circumstances shall NexGenic be liable for any punitive, exemplary, consequential, incidental, indirect or special damages (including, without limitation, any personal injury, lost profits, business interruption, loss of programs or other data on your computer or otherwise) arising from or in connection with your use of our Services or content, whether under a theory of breach of contract, negligence, strict liability, malpractice or otherwise, even if we or they have been advised of the possibility of such damages.

10.1 General Release

You hereby release NexGenic and hold it harmless from any and all claims, demands, and damages of every kind and nature (including, without limitation, actual, special, incidental and consequential), known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your use of our Services. You waive the provisions of any state or local law limiting or prohibiting a general release. 

11.  PAYMENT

11.1 Fees

You agree to pay all amounts due, including any late payment fees, as are specified on our website, a Registered User Agreement, or in an invoice (collectively, “Fees”). All fees are quoted in United States currency. You will provide us with valid and updated credit card information, or with a valid Purchase Order or alternative document reasonably acceptable to us. If you provide us credit card information, you authorize us to charge such credit card for all Services used and associated incurred costs. Such charges shall be made monthly or in accordance with any different billing frequency stated in the Registered User Agreement. If the Registered User Agreement specifies that payment will be a method other than credit card (e.g., Purchase Order), we will invoice you in accordance with the terms of the Registered User Agreement. NexGenic reserves the right to suspend any or all services until overdue accounts are paid in full.

11.2 Fee Modifications

NexGenic reserves the right to modify Fees. If you object to the Fee modification you have the right to terminate this Agreement and stop using the Services.

11.3 Payment Terms

Payment terms shall be applicable with respect to all amounts payable to NexGenic pursuant to this Agreement. If elected by you, NexGenic shall charge Providers credit card on file for all Fees or if you do not have a valid credit card on file, NexGenic shall invoice you for the payment of Fees. All such amounts shall be due upon receipt by Provider. Any payment that is not paid within thirty (30) days of the date of invoice as shown in NexGenic’s records, will accrue interest at a rate of 1.5% per month from the due date until paid. In addition, Provider agrees to pay and indemnify NexGenic for any costs, including legal and other collection fees, incurred by NexGenic in the course of collecting past due amounts through any third party collection services retained by NexGenic to collect unpaid, past due amounts under this Agreement.

11.4 Suspension of Services

If you are overdue for payment for Services more than sixty (60) days we will terminate your account and we retain the right to refuse your re-registration until outstanding amounts are paid in full.

12.  INTELLECTUAL PROPERTY

All of the content available on the Site and Services are property of NexGenic and governed by US intellectual property laws. We grant you permission to display, download, store and print NexGenic content only for your personal, non-commercial use. You agree not to reproduce, retransmit, distribute, disseminate, reverse engineer, sell, publish, broadcast, or circulate any NexGenic content without prior written permission by NexGenic.  

All other brands and names are the property of their respective owners. Nothing contained on the Site should be construed as granting any license or right to use any trademark displayed on this site without the express written permission of us or such third-party, that may own the trademark.

Operational and service performance data will be used to establish and improve the overall performance of the Services and will be collected by NexGenic and is the property of NexGenic. All operational and service data collected through the service is available to the Registered User and may be accessed through the ImageInbox App.

If you elect to submit to us any ideas, suggestions or proposals (collectively, “Suggestions”) relating to our Services or other products or services by any means – such as through “Contact Us,” by email or other communication, such as to our customer support or other personnel – such Suggestions (1) are not governed by our Privacy Policy; and (2) We are under no obligation of confidentiality, express or implied, with respect to such Suggestions; and (3) We are entitled to use or disclose (or choose not to use or disclose) such Suggestions in any way and for any purpose; and (4) such Suggestions automatically become our property without any obligation; and (5) you are not entitled to any accounting, compensation or reimbursement of any kind from us under any circumstances.

13.  DISCLAIMERS

Access to NexGenic Services and the information contained therein is provided “AS-IS,” “WHERE-IS,” and “AS-AVAILABLE” without any warranty of any kind, express or implied. To the fullest extent permissible pursuant to applicable law, NexGenic disclaim all warranties of any kind, either express or implied, including but not limited to any implied warranties of its Services.

Services offered by NexGenic may not be available at all times.

You shall be solely and fully responsible for any damage to NexGenic, our Services, our computer system, systems belonging to our users, any loss of data, or any improper use or disclosure of information on our website caused by you or any person using your account information. NexGenic cannot and does not assume any responsibility for any loss, damages or liabilities arising from the failure of any telecommunications infrastructure, or the Internet or for your misuse of any advice, ideas, information, instruction or guidelines accessed through our Site or Services.

14.  ELECTRONIC CONTRACTING, COMMUNICATIONS AND NOTICES

Your consent to the terms of this Agreement by clicking the “I ACCEPT” button, which constitutes your electronic signature to this Agreement. As part of providing our Services to you, we may need to provide you with certain communications. You agree that we may send to you in electronic form any privacy or other notices, disclosures, reports, documents, notifications, confirmations, and administrative messages or other records regarding the Services (collectively, “Communications”).  You consent to receive such Communications from us electronically.  

We send electronic Communications: (1) to the e-mail address that you provided to use during registration, (2) by secure text to the phone number provided in the registration information, or (3) by posting the Communication on the applicable Service or otherwise through the site. The delivery of any Communication from us is effective when set by us, regardless of whether you read the Communication when you receive it or whether you actually receive the delivery.

You can withdraw your consent to receive Communications electronically by canceling your use of the applicable service.

15. CHANGES TO THE TERMS OF SERVICE

NexGenic retains the right to make changes to the Terms of Service from time to time. We will provide notice to Registered Users about such changes and, where required by applicable law, we will obtain your consent.  

16.  GOVERNING LAW

This Agreement will be governed by and construed in accordance with the internal laws of the State of California, excluding that body of laws known as choice of law or conflict of laws.  Any dispute arising out of or related to this Agreement shall be resolved only in the state and federal courts located in either the County of Los Angeles and the County of Ventura, depending on which courts have jurisdiction.

17.  MISCELLANEOUS

This Agreement constitutes the entire agreement between you and NexGenic relating to your use and our provision of our Services and the subject matter hereof, and no representations, statements or inducements, oral or written, not contained in this Agreement shall bind either you or NexGenic. Any of the terms of this Agreement which are determined to be invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable any of the remaining terms of this Agreement or affecting the validity or enforceability of this Agreement as a whole. Failure to insist on performance of any of the terms of this Agreement will not operate as a waiver of any subsequent default.

This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including Registered User Agreements), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale so long as it does not involve a direct competitor of the other party. Except as otherwise specifically provided herein, this Agreement may not be modified, supplemented, qualified, or interpreted except in writing signed by the parties. In the event of any conflict between the terms of this Agreement or any applicable state or federal laws, statutes and regulations relating to the subject matter hereof, the terms shall first be read together to the extent possible; otherwise the terms that afford the greater protections to the intent of the provision shall prevail over the conflicting term and in accordance with applicable state or federal laws, statutes and regulations.

Neither Party shall be liable for any delay or failure due to force majeure and other causes beyond its control including for acts of God, labor disputes, changes in government policy/law, war, epidemics, acts or omissions of vendors or suppliers, disruptions caused by failures of the Internet or service providers (including those providing electricity, telecommunications links and/or Internet connectivity) or other occurrences which are beyond its reasonable control. This provision shall not apply to any of your payment obligations. In the event that either Party is excused from the performance of its obligations hereunder, then that Party shall use all efforts, which are reasonable under the circumstances to resume performance of its obligations hereunder as soon as possible.

A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

18.  CONTACT INFORMATION

If you have any questions about this statement, please mail the NexGenic Legal Department at:

Legal Counsel

NexGenic

3435 East Thousand Oaks Blvd., #7541

Thousand Oaks, CA 91362