TERMS OF SERVICE / END USER LICENSE AGREEMENT
Welcome to Envodent! This Terms of Service and End User License Agreement (“TOS”) constitutes a valid and binding agreement between Digital Dental Services LLC (DBA, Envodent) (together with its affiliates, successors and assigns “Company,” “we,” or “us”) and you (“Client,” “you,” or “your”). This TOS together with the applicable order form (“Order Form”) as well as the Business Associate Agreement (“BAA”) attached hereto as Exhibit A, sets forth the terms and conditions under which you may use our online and/or mobile services, application, website, and Software provided by or in connection with the service (“Services”). This TOS, together with the applicable Order Form(s) and Exhibit(s), collectively form the “Agreement.” In the event of any conflict between this TOS and any Order Form, the applicable Order Form shall prevail to the extent of such conflict. Company and Client may be referred to herein individually as “a Party” and together as “the Parties.”
By accessing or using the Services, you signify that you have read, understood, and agree to be bound by the terms herein. If you do not agree, you may not use the Services. You may only access and use the Services in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Services.
You represent to us that you are lawfully able to enter into contracts. You must be at least 18 years of age (or the age of legal majority in your jurisdiction if different than 18) to be eligible to use the Services. In certain instances, Company may require you to provide proof of identity to create your account, or to access or use the Services, and you acknowledge and agree that you may be denied access or use of the Services if you refuse to provide such proof. This Agreement applies to all visitors, users, and others who access the Services (“Users”).
“Client Data” means information entered into, stored within, and/or retrieved from the Services by Client in the course of its authorized use of the Services.
“Software” shall mean the computer software in object code form owned or provided by Company for which Client has a Subscription pursuant to the Agreement, updates and upgrades to the Software, and online documentation associated therewith.
“Provider” shall include: (1) each owner, employee, contractor or agent of Client that has a State Dental License; and (2) each owner, employee, contractor or agent of Client that has a State Hygiene License and can provide dental patient services unsupervised by a Provider with a State Dental License. It does not include a provider such as hygienists or assistants that provide care under the direction and billed under a unique Tax ID of a licensed Dentist. Other medical supporting staff are also not considered Providers, including the following staff types: billers, scheduling clerks, dental assistants, technicians (lab, radiology, etc.), and case managers. A Provider as defined above typically has a physician-level medical license, including, but not limited to, the following professional designations: DMD, DDS, MD, and Ph.D.
Use of Our Services
This Agreement governs your access and use of the Services, and any information that is displayed or provided therein. The Services may include hosting Services, electronic Services, customer support Services or other Services specifically identified in an Order Form. By accessing and/or using the Services, you are indicating your acceptance of this Agreement, which thereby becomes a binding contract between you and Company, and you agree to be bound by all terms and conditions herein. Company’s acceptance is expressly conditioned upon your assent to all the terms and conditions of this Agreement, to the exclusion of all other terms.
Company may use or incorporate third party companies to provide Software, applications, products or services hereunder (collectively, “Third Party Service Providers”) as part of the Services provided hereunder. To the extent that Company uses one or more subcontractors or agents to provide services under the Agreement, and such subcontractors or agents receive or have access to the Protected Health Information, Company shall either sign a Business Associate Agreement with such subcontractor or agent containing substantially the same restrictions and conditions related to the Protected Health Information as those that apply to Company under this addendum, or ensure that such subcontractor or agent agrees to implement reasonable and appropriate safeguards to protect such information consistent with the requirements of 45 CFR 164.314(a)(1)(i).
In consideration of monthly Subscription Fees (calculated as the number of active Provider records within the Client Data multiplied by the applicable Fees), and subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, revocable license for the number of Providers as provided for in the Order Forms(s) to use the Services as permitted by the features of the Services. Company reserves all rights not expressly granted herein in the Services and the Company Content (as defined below).
You acknowledge and agree that the Services are licensed solely for your own business or personal use and you may not use the Services for any other purposes, without prior written authorization from Company. You agree to not grant access to any third party for any purpose whatsoever without the prior written consent of Company; (b) make the Services, in whole or in part, available to any other person, entity or business; (c) sell, sublicense, lease, permit, transfer, copy, reverse engineer, decompile or disassemble the Services, in whole or in part, or otherwise attempt to discover the source code to the Software used in the Services; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services; (e) remove any proprietary notices from the Software of elsewhere on the Services; or (d) modify, alter, integrate, combine the Services or associated Software with any other software or services not provided or approved by us. You have and will obtain no rights to the Services except for the limited rights to use the Services expressly granted by this Agreement. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Company reserves all rights not expressly granted under this Agreement
Company shall have the right to monitor use of the Services by Client: (i) electronically at any time; or (ii) by on-site audit of Client’s use of the Services not more than once per year upon reasonable notice to Client and to charge for additional Providers as appropriate under the Agreement.
You acknowledge that Company may from time-to-time issue upgraded versions of the Services, and may automatically electronically upgrade the version of the Services that you are using. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
Client may designate user account names and passwords for the number of Providers stated in the Order Form(s) and for additional permitted non-Provider users associated with authorized Providers. In the event that Client designates user account names and passwords to Providers not stated in valid Order Form(s), Client agrees that by doing so, it shall incur additional Subscription and Services Fees at current Provider rates.
In order to use the Services, you will be required to create an account and provide accurate, current and complete information in connection with your use of the Services (“Account“). You agree to maintain and promptly update your Account information as necessary to maintain its accuracy. Company reserves the right to suspend or terminate access to and use of the Services, or any portion thereof, on the basis of inaccurate or incomplete Account information.
Your Account gives you access to the Services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Company Account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
You are solely responsible for all activity that occurs when the Services are accessed through your Account, and you must keep your account password secure. You must notify Company immediately of any breach of security or unauthorized use of your account. Company will not be liable for any losses or damages arising from your failure to protect your password or Account information and/or caused by any unauthorized use of your Account.
You may control your Account and how you interact with the Services by changing the settings in your Account. By setting up an Account, you consent to our using your email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your Account settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
Any unauthorized access or use of the Company Services or the information contained therein, is a violation of Company’s policies, may result in our suspending or terminating your Account, and may subject you to criminal liability.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, stealing or assuming and person’s identity (whether a real identity or nickname or alias), conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein. Furthermore, you may not use the Services to develop, generate, transmit or store information that: (A) infringes any third party’s intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Services, (D) performs any unsolicited commercial communication not permitted by applicable law; and (E) is harassment or a violation of privacy or threatens other people or groups of people.
The Services contain confidential and trade secret information owned or licensed by Company, and you agree to take reasonable steps at all times to protect and maintain the confidentiality of such information.
We may, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
Availability of Services. Company will use commercially reasonable efforts to make the Services available pursuant to this Agreement except for (a) planned downtime; (b) emergency downtime; and (c) any unavailability caused by circumstances beyond our reasonable control. Company reserves the right to modify the Services from time to time and makes no guarantees as to the continuous availability of the Services or of any specific feature(s) or functionality(ies) of the Services.
The Services and all materials therein or transferred thereby, including, without limitation, Software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “Company Content”), and all intellectual property rights related thereto, are the exclusive property of Company and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by this Agreement is strictly prohibited. This Agreement does not provide you with title or ownership of any Services or Company Content, but only a limited right to use the same solely upon the terms expressly set forth in this Agreement. For the purpose of clarity, nothing provided under this Agreement is to be considered a “work for hire” and Company does not convey, transfer or assign to you any right, title and interest it may have now or in the future acquire, including but not limited to all intellectual property rights.
You will own and maintain ownership of all of your materials and Client Data (“Client Materials”). We do not claim any ownership of the Client Materials that you submit, post, or display through the Services.
Subject to the terms and conditions of this Agreement, you grant Company a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Client Materials, only as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by You. In addition, provided that Company implements appropriate de-identification criteria in accordance with the Standards for Privacy of Individually Identifiable Health Information set forth in 45 C.F.R. §164.514(b), Client acknowledges and agrees that de-identified information is not Protected Health Information as defined in the applicable regulations and that Company may use such de-identified information for any lawful purpose.
Client represents and warrants that it has secured all rights in and to Client Materials from its patients, customers, users, etc. as may be necessary to grant this license.
Client understands and agrees that Client is responsible for maintaining and protecting backups of Client Materials, as applicable, directly or indirectly processed using the Services and that Company is not responsible for exportation of, the failure to store, the loss, or the corruption of Client Materials.
The Client Materials that you submit may be modified or adapted for purposes of transmission, display, or distribution over computer networks or any media formats, in order to conform to any requirements or limitations in working with such networks, services, devices or media. You retain any and all ownership rights to the Client Materials that you submit and are responsible for protecting those rights. We reserve the right at all times to remove or refuse distribution of any Client Materials on or through our Services.
In consideration for the Services provided by Company during the Subscription Term, Client agrees to pay Company such compensation as described further in the applicable Order Form (“Fees”). In the absence of specific provisions in the applicable Order Form(s), fees for one-time Services are due upon acceptance of any Order Form and prior to delivery of the Service. Fees that are fixed, such as Subscription Fees, shall be payable monthly or yearly in advance and due in full upon the first day of each month or year as applicable; all other Services that are variable and dependent on actual usage are billed in arrears and due upon receipt.
All Fees due from Client to Company shall be paid in advance unless otherwise provided in the Order Form. If Client fails to pay Company within five (5) business days from the date payment is due, then Company may, without limiting and in addition to its other available remedies, assess a late payment charge at the rate of two percent (2.0%) per month or the maximum rate allowed by applicable law, whichever is the lesser. In the event Client fails to make a payment, Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Company in collecting such amounts.
Certain aspects of the Services may be provided for a set Fee, monthly or annual subscription, or other charge. You agree to the pricing and payment terms as we may update them from time to time. Company may add new services for additional Fees and charges, or add or amend Fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you or at the end of your current subscription. Company will provide Client with prior notice of any change in Fees to give Client an opportunity to terminate its Subscription before such change becomes effective. Client’s continued use of the Services after the Fee change comes into effect constitutes Client’s agreement to pay the modified Fee amount.
Client acknowledges and agrees that there shall be no refunds under this Agreement for any reason. In case Client requests early termination for any reason whatsoever, Client shall still be liable for all fees due for the entire Subscription Term. The Fees cover all costs that Company incurred for the creation and functioning of Client’s Account for the agreed upon Term hereof, and other expenses related thereto
Please note that any payment terms presented to you in the process of using or signing up for Services are deemed part of this Agreement. Company uses a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your Account. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By utilizing the Services, you agree to pay us, through the Payment Processor, in accordance with the applicable payment terms. Company reserves the right to change its prices and to offer discounts and temporary promotions. You agree that it is your responsibility to maintain a valid, non-expired credit card on file with us while engaging in fee-based activities on our Services. You agree that if you do not maintain a valid, non-expired card on file with us during any billing attempt, you may be subject to interest and penalties. You irrevocably and expressly authorize Company to withhold any monies and/or debit any monies from any account that you have identified to Company for any chargebacks, fees, costs, deductions, adjustments and any other amounts owed to Company.
Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). In the event that any amount payable by you to Company is subject to Taxes, Company shall collect the full amount of those Taxes from you and said collection shall not reduce or somehow impact the amount to which Company is entitled. You will reimburse Company for any Taxes, interest, and penalties that Company may be compelled to pay on account of your non-payment. In the event that any payments and/or amount payable by you to Company is subject to (i) any withholding or similar tax; (ii) any Taxes not collected by Company; or (iii) any other Taxes or other government levy of whatever nature, the full amount of that tax or levy shall be solely your responsibility and shall not reduce the amount to which Company is entitled under the Agreement. You will indemnify and hold Company harmless against any and all claims by any competent tax authority related to any such withholding or similar taxes and any penalties and/or interest thereon. If Client is a 501C3 organization or otherwise tax exempt, then Client may not be required to pay such taxes. In such case, Client will provide evidence of its tax-exempt status.
California Residents. The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
In order to receive the benefits provided by certain aspects of the Services, you may need to grant permission for the Software to utilize the processor and bandwidth of your computer. You understand that the Services will protect the privacy and integrity of your computer resources and communication and ensure the unobtrusive utilization of your computer resources to the greatest extent possible.
Company cares about and takes very seriously the integrity and security of your personal information. We take industry standard and commercially reasonable administrative, physical and electronic measures designed to safeguard and protect the Services, Client Materials and content therein from unauthorized access, use, modification, deletion and/or disclosure by our personnel. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Third-Party Links and Information
Representations and Warranties
You represent and warrant that: (i) you have the power, right and authority to enter into this Agreement, and are capable of forming a binding contract: (ii) you will use the Services for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii) you own or have sufficient rights in and to the Client Materials you submit through the Services to grant to Company the licenses set forth in this Agreement with respect to such content, that any use by Company of such Client Materials as contemplated in this Agreement will not infringe on the rights of any third party or violate any applicable laws or regulations, and that such content shall not (a) violate any laws or regulations or any rights of any third parties, including but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade dress, trade secret, image or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or publicity rights, moral or otherwise, or rights of celebrity, or any other right of any person or entity; (b) contain any material that is unlawful, fraudulent, threatening, defamatory, obscene, profane or hateful or (c) contain any disabling codes or instructions, or any viruses, worms, Trojan horses or other contaminants.
You further represent and warrant that you will not share your log-in ID or password or any of the information contained within the Company Services with any third party whatsoever without the explicit written permission of Company. For the purpose of clarity, this includes providing access to, or allowing, third parties to log-in through your account, as well as copying and sharing reports and/or contact’s emails, names or phone numbers, with any other individual, business, marketing or survey company. You agree that you alone will be responsible for paying Company and other related parties, any damages, losses, penalties and costs whatsoever related to a breach by you of this section.
Company represents and warrants that: (i) the Services shall materially perform as set forth in any descriptions or specifications provided by Company to you, and (ii) the Services will not infringe the intellectual property rights of third parties.
Client understands and agrees that the Services and information contained therein or provided therewith are provided on an “as is” and “as available” basis. USE OF THE SERVICES IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICES OR THE INFORMATION CONTAINED THEREIN, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. EXCEPT AS OTHERWISE EXPLICITLY STATED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES Are PROVIDED , without warranty of any kind, and all express, implied or statutory warranties, conditions, representations, including but not limited to, the implied warranties of title, merchantability, fitness for a particular purpose, accuracy, timeliness, completeness, adequacy and non-infringement or warranties arising out of course of performance, course of dealing or usage or trade are excluded by Company. Furthermore, and without limitation, Company does not warrant that: A) information provided by the Services is correct, accurate, reliable or complete; B) the function of the Services will be uninterrupted or error-free; C) ThE SERVICES WILL MEET YOUR REQIREMENTS; D) the use of the Services will result in any particular results; E) THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; F) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; G) OR THAT THE SERVICES Are FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
COMPANY MAY ALTER, SUSPEND, ADD TO, OR DISCONTINUE THE SERVICES IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON, WITHOUT NOTICE OR COST. COMPANY ASSUMES NO RESPONSIBILITY FOR YOUR ABILITY TO (OR ANY COSTS OR FEES ASSOCIATED WITH YOUR ABILITY TO) OBTAIN ACCESS TO THE SERVICES. COMPANY DOES NOT ASSUME ANY LIABILITY FOR THE FAILURE TO STORE OR MAINTAIN ANY CLIENT MATERIALS, COMMUNICATIONS, ACCOUNT INFORMATION, OR PERSONAL SETTINGS. BY HAVING ACCESS TO THE SERVICES, YOU AGREE THAT COMPANY AND PARTNERS MAY PLACE ADVERTISEMENTS ON THE SERVICES. THE TYPES OF ADVERTISEMENTS ARE SUBJECT TO CHANGE. THE SERVICES MAY BECOME UNAVAILABLE DUE TO MAINTENANCE OR MALFUNCTION OF COMPUTER EQUIPMENT, SERVERS, OR OTHER REASONS.
Company shall have no liability to Client whatsoever for the failure of Third Party Service Providers to render Services, or due to defects in the quality of service provided by Third Party Service Providers. If Third Party Service Providers cease providing services to Company pursuant to their agreements, or revise their terms of service, then the respective obligations of Company hereunder shall terminate or be modified according to the third party terms, at Company’s option, and Company shall incur no associated liability to Client with respect to such termination or modification, except that the Parties shall work together in good faith to find suitable replacement THIRD PARTY SERVICE providers.
YOU agree that Company has made no agreements, representations or warranties other than those expressly set forth in this Agreement, and that no future agreement, representation or warranty of Company with regard to Services provided under this agreement shall be effective unless expressly stated in an amendment to this Agreement signed by both parties.
THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Limitation of Liability
IF YOU ARE DISSATISFIED WITH THE SERVICES, OR ANY MATERIALS, OR PRODUCTS THEREIN, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, whether aS claim for any such liability or damages is premised upon breach of contract, breach of warranty, negligence, strict liability, or any other theory of liability, even if Company has been apprised of the possibility or likelihood of such damages occurring.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. You acknowledge and agree that the fees and other charges which Company is charging under this Agreement do not include any consideration for assumption by Company of the risk of your indirect, consequential or incidental damages or of unlimited direct damages. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COMPANY’S SOLE AND EXCLUSIVE LIABILITY AND VENDOR’S SOLE AND EXCLUSIVE REMEDY FOR ALL CLAIMS OF DEFECTS IN THE SERVICES WILL BE, IN COMPANY’S SOLE DISCRETION, TO EITHER: (A) RE-PERFORM SUCH SERVICES; OR (B) FULLY OR PARTIALLY CREDIT OR REFUND THE SUBSCRIPTION FEES PAID BY VENDOR FOR SUCH SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY DEPENDING ON THE APPLICABLE JURISDICTION. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Unless otherwise explicitly stated, the Services are controlled and operated from facilities in the United States. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) (“Losses”) arising from: (i) your use of and access to the Services, including any Client Materials transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) your negligence or misconduct; or (vi) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
Company agrees to defend, indemnify and hold you harmless from third party claims arising out of (i) a breach of this Agreement by Company, or (ii) claims that the Services infringe the intellectual property rights of third parties. If the Services become the subject of an intellectual property infringement claim, Company may, at its sole option, (a) procure for you a license to continue using the Services in accordance with this Agreement; (b) replace or modify the allegedly infringing portion of the Services to avoid the infringement, or (iii) terminate this Agreement and refund any prepaid fees as applicable to the period after termination. This section sets forth Company’s entire liability and Client’s sole remedy in the event of any third party infringement claim regarding the Services.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver
Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States and the State of Oregon as it applies to a contract made and to be performed in such state. You consent and agree that the state and federal courts of Washington County, Oregon shall have personal jurisdiction over you, as well as subject matter jurisdiction with respect to any provision of this Agreement, and shall be the exclusive forums for any litigation arising out of or relating to this Agreement, subject to section b below. You also agrees to and hereby waive your rights to a trial by jury and agrees to accept service of process by mail.
Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. For any dispute with Company, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Washington County, Oregon, unless you and Company agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Expenses and Attorneys’ Fees. In the event any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
Term and Termination
Client’s rights to use the Services shall remain in effect for the Subscription Term set forth in the Order Form(s). Thereafter, the term shall automatically renew for additional terms for the same length of time as set forth in the Order Form at then-current prices unless either Party gives thirty (30) days advance written notice prior to the end of the then-current term of its intention to terminate the Agreement, or until otherwise terminated as provided herein.
Either party may terminate the Agreement upon written notice to the other party (email acceptable) if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Notwithstanding the foregoing, Company may terminate the Agreement and access to the Services for non-payment of Fees upon ten (10) days prior written notice (email acceptable), at which time Fees for the current term shall be due and payable in full.
Company has the right to deny access to, and to suspend or terminate your access to, the Services, or to any features or portions of such, and to remove and discard any Client Materials you have submitted, at any time for any violation by you of this Agreement. In the event that we suspend or terminate your access to and/or use of the Services, you will continue to be bound by the terms of this Agreement in effect as of the date of your suspension or termination.
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with this Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with this Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement.
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure.
We respect the intellectual property rights of others, and we prohibit the uploading, posting, transmitting, sharing, or otherwise making available any material that violates another party’s intellectual property rights. When we receive proper notification of alleged copyright infringement, we may promptly remove or disable access to any allegedly infringing material and may terminate any Account of any repeat infringer, in accordance with the Digital Millennium Copyright Act (“DMCA”). If you believe that your own copyrighted work is accessible on the Services or any service in violation of your copyright, then You may provide our designated agent with a written communication as set forth in the DMCA, 17 U.S.C. Sec. 512(c)(3) that contains substantially the following information:
Identify in sufficient detail the copyrighted work or intellectual property that you claim has been infringed, so that we can locate the material.
Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner’s behalf.
Include a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
Include a statement by you that the information contained in your notice is accurate and that you attest under the penalty of perjury that you are the copyright owner or that you are authorized to act on the copyright owner’s behalf.
Include your name, mailing address, telephone number, and email address. You may submit your notification of Alleged Copyright Infringement by sending a letter to our designated agent with the subject line “DMCA notification” by email to email@example.com.
Independent Contractor. The parties to the Agreement are independent contractors and nothing in the Agreement shall be deemed to make either party an agent, employee, or partner of the other party. Neither party shall have any authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
U.S. Government. The Services and accompanying documentation are commercial computer software and documentation developed exclusively at private expense and in all respects are proprietary data belonging to Company. If the Services and accompanying documentation are used under the terms of a DoD or civilian agency contract, use, reproduction and disclosure of such software and documentation by the Government is subject to the restrictions set forth in the Agreement in accordance with 48 C.F.R. 227.7202 or 48 C.F.R. 12.212, respectively.
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The HIPAA Business Associate Agreement attached hereto as Exhibit A is hereby incorporated into this Agreement.
Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Notification Procedures and Changes to the Agreement. Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Company in our sole discretion. Company reserves the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification as described in this Agreement. Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Company may, in its sole discretion, modify or update the TOS from time to time, and so you should review the TOS periodically. When we change the TOS in a material manner, we will let you know and update the last modified date at the bottom of this page. Your continued use of the Services after any such change constitutes your acceptance of the new Agreement. If you do not agree to any of these terms or any future terms, do not use or access (or continue to access) the Services.
Electronic Communications. Our communications with you via the Services use electronic means, whether you visit the Services or send us an email, or whether we post notices on the Services or communicate with you via email or text. For contractual purposes, you consent to receive communications from us in an electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
Entire Agreement / Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Company in connection with the Services, shall constitute the entire agreement between you and Company concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Feedback. We may use any reports, comments, ideas and suggestions in any form regarding the Services that you provide to us (collectively, the “Feedback”). You grant us a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback in connection with any products and services.
Interpretation. Section headings are for reference only, and shall not be construed as substantive parts of this Agreement. Each capitalized term used in this Agreement (including any schedule or exhibit of this Agreement) shall have the meaning attributed to it in any part of this Agreement (including any such schedules or exhibits).
Survival. You acknowledge and agree that all indemnification, confidentiality, intellectual property, governing law, dispute resolution, enforceability/injunctive relief, limitation of liability and other clauses including those provisions which by their terms contemplate survival shall survive the termination or expiration of this Agreement regardless of the cause of such termination.
Force Majeure. Neither party shall be liable to the other party for any delay or failure of said party to perform its obligations hereunder (except for payment obligations) if such delay or failure arises from any cause or causes beyond the reasonable control of such party. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by either party in providing required resources or support or performing any other requirements hereunder.
EXHIBIT A: BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement between Company and Client, is incorporated into the above Terms of Service and is effective as of the Effective Date of the Agreement as provided in the applicable Order Form(s).
Client and Company are parties to one or more agreements (each such agreement, a “Covered Contract,” and collectively, the “Agreement”) pursuant to which Company provides certain services to Client, and, in connection with those services, Client discloses to Company certain health information (the “Protected Health Information” as defined in 45 CFR §164.504) that is subject to protection under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and certain regulations promulgated by the U.S. Department of Health and Human Services to implement certain provisions of HIPAA (herein “HIPAA Regulations” found at 45 CFR Parts 160-164).
Company, as a recipient of Protected Health Information from Client, is a “Business Associate” as that term is defined in the HIPAA Regulations.
Pursuant to the HIPAA Regulations, all Business Associates of entities such as Client must, as a condition of receiving Protected Health Information in the course of doing business with Client, agree in writing to certain mandatory provisions regarding, among other things, the use and disclosure of Protected Health Information.
The purpose of this Exhibit is to satisfy the requirements of the HIPAA Regulations, including, but not limited to, 45 CFR §164.504(e), as the same may be amended from time to time.
OBLIGATIONS OF THE PARTIES
Scope of Use of Protected Health Information. Company may not: (a) use or disclose Protected Health Information it receives from Client for any purpose other than the purposes contemplated by the Agreement, as required or allowed under the HIPAA Regulations, or as otherwise required by law; or (b) use or disclose Protected Health Information in a manner that violates or would violate the HIPAA Regulations if such activity were engaged in by Client. Client hereby represents and warrants (i) that the execution and performance of this Exhibit will not conflict with or violate any provision of any law having applicability to Client; (ii) that Client has the right to provide the Protected Health Information provided to Company under this Exhibit; and (iii) that the use, provision of access and/or disclosure by Company of any Protected Health Information as authorized or contemplated by this Agreement will not conflict with or violate any provision of any law having applicability to either of the Parties, including, without limitation, HIPAA and the HIPAA Regulations, nor constitute a tort against any third party, nor constitute a breach of contractual obligations between any third party and Client.
Safeguards for the Protection of Protected Health Information. Company will use reasonable efforts to implement and maintain such business and technological safeguards as are necessary to ensure that the Protected Health Information disclosed between Client and Company is not used or disclosed by Company except as is provided in the Agreement.
Reporting of Unauthorized Use or Disclosure. Company shall promptly report to Client any use or disclosure of Protected Health Information of which Company becomes aware that is not provided for or permitted in the Agreement or the HIPAA Regulations. Company shall permit Client to investigate any such report in accordance with this Exhibit.
Data Transfer Security. Company will take reasonable measures to protect the security and integrity of the Protected Health Information when electronically transferring such information.
Access Security. Company will take reasonable security measures to protect the Protected Health Information from unauthorized access. Access to Company’s computer networks and systems and the Protected Health Information will be controlled via a user ID and password. COMPANY IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED USE OR DISCLOSURE OF A USER ID OR PASSWORD, OR FOR ANY BREACH OF THIS EXHIBIT ARISING AS A RESULT OF ANY SUCH UNAUTHORIZED USE OR DISCLOSURE BY OR ON BEHALF OF CLIENT.
Authorized Access to and Alteration of Protected Health Information. In order to help ensure the accuracy of the Protected Health Information, Company, on an ongoing basis, will provide Client access for inspection to any such Protected Health Information then retained in Company’s possession. If any of the Protected Health Information is found to be inaccurate or incomplete, Client may submit amendments or corrections to the Protected Health Information and Company shall promptly incorporate all such amendments or corrections. Company shall cooperate promptly with Client in responding to any request made by any subject of such information to Client to inspect and/or copy such information. Company may not deny Client access to any Protected Health Information if such information is requested by the subject seeking access to it.
De-identified Information. Provided that Company implements appropriate de-identification criteria in accordance with the Standards for Privacy of Individually Identifiable Health Information set forth in 45 C.F.R. §164.514(b), Client acknowledges and agrees that de-identified information is not Protected Health Information as defined in the applicable regulations and that Company may use such de-identified information for any lawful purpose.
Accounting, Audits, and Inspection.
Company will keep an accounting of all disclosures, outside its normal course of business, of the Protected Health Information (the “Disclosure Accounting”) on an ongoing basis and maintain the Disclosure Accounting for a period of at least six (6) years. At a minimum, the Disclosure Accounting will contain (i) the date of the disclosure; (ii) the name of the entity or person who received the Protected Health Information and, if known, the address of such entity or person; (iii) a brief description of the Protected Health Information disclosed; and (iv) a brief statement of the purpose of the disclosure that reasonably informs the individual of the basis for the disclosure; or in lieu of such statement a copy of the subject’s written authorization or request for disclosure pursuant to the HIPAA Regulations. Company will provide the Disclosure Accounting to Client or a subject individual within sixty (60) days of receiving a written request from Client or such subject individual.
Subject to compliance with Company’s security requirements, the Secretary of Health and Human Services and/or Client, or their respective authorized agents or contractors, may, at their expense, examine Company’s facilities, systems, procedures and records related to the Protected Health Information, as may be required to determine that Company is in compliance with the HIPAA Regulations, the Agreement or this Exhibit. If it is determined that Company is in violation of the HIPAA Regulations, the Agreement or this Exhibit, Company shall promptly remedy any such violation and shall certify the same in writing. The fact that Client inspects, or fails to inspect, or has the right to inspect, Company’s facilities, systems and procedures does not relieve Company of its responsibility to comply with this Exhibit, nor does Client’s failure to detect, or to detect but fail to call Company’s attention to or require remediation of any unsatisfactory practice, constitute acceptance of such practice or a waiver of Client’s enforcement rights.
Right of Termination. In the event that Company breaches a material term of this Exhibit and fails to cure such breach within thirty (30) days after receipt of written notice thereof, Client will have the right to terminate the relevant Covered Contract under which Client disclosed the Protected Health Information that is the subject of the relevant breach.
Effect of Termination. Upon the termination or expiration of a Covered Contract for any reason, Company, at its option, will either (i) return, delete, purge or destroy, all Protected Health Information received from Client under such Covered Contract that Company maintains in any form, or (ii) if Company determines that such return or destruction is not feasible at a reasonable cost, Company will continue to restrict such Protected Health Information in compliance with this Exhibit.
Incorporation; Effect on Agreement. This Exhibit is incorporated into and made part of each Covered Contract and in each case is subject to the terms and conditions set forth therein, provided that, in the event that a conflict arises between this Exhibit and any Covered Contract (exclusive of this Exhibit), the terms and conditions of this Exhibit shall govern. Except as specifically required to implement the purposes of this Exhibit, and otherwise except to the extent inconsistent with this Exhibit, all other terms of the Agreement shall remain in full force and effect, and the Parties hereby ratify and affirm the Agreement except as superseded or modified by this Exhibit.
Construction. This Exhibit shall be construed as broadly as necessary to implement and comply with the HIPAA Regulations. The parties agree that any ambiguity in this Exhibit shall be resolved in favor of a meaning that complies and is consistent with the HIPAA Regulations.