1. Ownership of Intellectual Property Rights
Company (and its affiliates, successors or assigns, or its licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to the Services, including all related technology, source codes, software components, content (other than Customer Data, as defined below), documentation and informational text, and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating thereto. The trademarks, trade names, service names, logos, taglines, and slogans associated with the Services (collectively, “Company Trademarks”) are the sole property of Company, its affiliated companies, and/or its licensors. Except as otherwise specifically provided herein, nothing shall be construed as granting any license or right to use any Company Trademarks.
2. License Grant and Restrictions
Subject to and conditioned on Customer’s continued compliance with this Agreement, Company hereby grants to Customer, during the Term of this Agreement, a revocable, non-exclusive, non-transferable license to use the Services in accordance with the terms of this Agreement. Any use of the Services for any purpose other than as specifically permitted in this Agreement or without Company’s, or our licensor’s, prior written consent, is expressly prohibited. Customer’s license to use the Services shall terminate immediately upon the occurrence of any of the following: (i) Customer’s breach of this Agreement or other agreements and guidelines governing Customer’s use of the Services, or (ii) Customer’s failure to make any payment when due.
Company reserves the right to modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, for Customer or for all users at any time and in Company’s sole discretion. All such changes will be effective upon their posting on the Services, Company’s website, or in such other form of communication as may be designated by Company from time to time.
The license granted under this Agreement does not permit Customer to store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher, or otherwise attempt to discover any programming code or any source code used in or with the Services, or otherwise distribute in any way the Services other than as specifically permitted in this Agreement. Except as expressly permitted in this Agreement, Customer is prohibited from (a) selling, assigning, sublicensing, granting a security interest in, or otherwise attempting to transfer any right in the Services; (b) creating derivative works based on; (c) commercially exploiting the Services in any manner, in whole or in part; and (d) reverse engineering the Services in order to (i) build a competing product or service, (ii) build a product using similar ideas, features, functions or graphics as the Services, or (iii) copy any ideas, features, functions, or graphics of the Services.
This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services. All rights not expressly granted to Customer hereunder are reserved by Company.
3. Third-Party Services and Websites
The Services may include third-party software, services, and websites (collectively, “Third-Party Sites and Services”), which may require Customer to enter into separate subscription or licensing agreements with certain third-party providers. Customer acknowledges and agrees, upon request, to execute and comply with any agreements that may be required for the use of such Third-Party Sites and Services.
The Services may require Customer to provide access to or login information for Third-Party Sites and Services. By providing access to and/or login information for Third-Party Sites and Services, Customer acknowledges and agrees that Customer (a) has read all licenses and written agreements governing such access and/or login information; and (b) has all the necessary contractual and legal rights to provide such access and/or login information. Third-Party Sites and Services may be subject to the applicable third-party provider’s terms of service and other policies, and Customer is solely responsible for reviewing and complying with any such terms of service and/or policies.
Company will not be responsible for any loss or damage incurred as a result of Customer’s use of Third-Party Sites and Services, regardless of whether Customer was directed by Company to such third-party software and services. References made by Company to Third-Party Sites and Services shall not be construed as Company’s approval or endorsement of such Third-Party Sites and Service.
4. Access to the Services; Passwords
Customer is solely responsible for maintaining the confidentiality of the user IDs and passwords (collectively, “IDs”). Customer shall be liable for any charges, damages, or losses that may be incurred or suffered as a result of Customer’s failure to do so. Company will not be responsible for any harm that Customer may incur from: (a) the theft of IDs; (b) Customer’s disclosure of IDs; or (c) another person’s or entity’s access to and use of the Services using Customer’s IDs, either with or without Customer’s knowledge. Customer agrees to immediately notify Company of any unauthorized use of IDs or any need to deactivate IDs due to security reasons, or in the event Customer suspects that IDs have been lost, stolen, compromised or otherwise misused.
Customer shall not access, use, or tamper with the Services via mechanical, programmatic, robotic, scripted, or any other automated means not provided as part of the Services. In no event shall Company be liable for any charges, damages, or losses that may be incurred or suffered as a result of Customer’s failure to do so.
5. Compliance with Laws
Customer is responsible for all activity occurring under Customer’s account(s) and shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with Customer’s use of the Services, including those related to privacy, data protection, international communications, and the transmission of technical or personal data, including but not limited to the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act (collectively referred to herein as “HIPAA”), the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) and the ePrivacy Directive 2002/58/EC (the “ePrivacy Directive”) as implemented by countries within the European Economic Area, and the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”). Customer shall ensure that any international transfer of personal data is in compliance with all applicable laws and regulations, including but not limited to the GDPR and PIPEDA. Customer shall: (i) notify Company immediately of any known or suspected breach of security; (ii) immediately report to Company and use reasonable efforts to immediately stop any copying or distribution of content that is known or suspected by Customer or others to violate this Agreement or the intellectual property rights of third parties; and (iii) not impersonate another user or provide false identity information to gain access to or use the Services. Customer is solely responsible for affording individuals their rights under applicable privacy, security, and data protection law, rule, and regulations.
By accessing the Services, Customer consents to Company’s Business Associate Agreement and where applicable, Company’s Data Processing Addendum.
6. Customer Conduct
Customer shall not use the Services (i) in violation of the rights of any third party or applicable law, rule, or regulation; (ii) to send spam, “junk mail,” unsolicited messages, or other forms of solicitation in violation of applicable laws; (iii) to send or store obscene, vulgar, libelous, defamatory, tortuous, unlawful, misleading, inaccurate, or false material, including material harmful to minors or violative of third-party publicity or privacy rights; (iv) to promote illegal activities; (v) to send or store material, which infringes any patent, trademark, trade secret, copyright, or other proprietary rights or rights of publicity or privacy of any person or that Customer does not have a right to make available under any law or under contractual or fiduciary relationship; (vi) to send or store material that is malicious, threatening, abusive, harassing, hateful or harmful to any person or entity, discriminatory based on race, sex, religion, nationality, disability, sexual orientation, age or other basis established by law or is otherwise indecent; (vii) to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (viii) to interfere with or disrupt the Services or the data contained therein; (ix) to attempt to gain unauthorized access to the Services or its related systems or networks; or (x) to use the Services, including the content, intellectual property, technology, trademarks, or service marks for any commercial purpose without Company’s prior written consent.
7. Customer Data
7.1 Ownership of Customer Data.
Customer shall retain all right, title, and interest to patient and/or client data and other information and content through the Services (collectively, “Customer Data”), subject to Company’s right to use Customer Data for the purposes of providing the Services to Customer. Customer further grants Company the right to receive, process, disclose, and transfer Customer Data for additional business purposes, provided that when processing such Customer Data for purposes unrelated to the Services, the Customer Data shall be de-identified so that it is not identifiable to any particular patient and/or client of Customer, but may be identifiable to Customer’s practice.
Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to the use of Customer Data, submitted, posted, transmitted or made available through Customer’s use of the Services. Customer acknowledges and agrees that Company does not control Customer Data nor does Company guarantee the accuracy, integrity, security, or quality of such Customer Data. Company will not be liable for: (a) the deletion, correction, destruction, damage, loss, or failure to store any Customer Data; or (b) the improper or erroneous upload or extraction of any Customer Data.
7.2 Company Use of Protected Information.
The Services may include use of Customer Data that consists of protected information, including but not limited to, Protected Health Information under HIPAA. Customer retains all right, title, and interest in such protected information and Company will only use such protected information as expressly permitted in this Agreement, the Business Associate Agreement, and/or the Data Processing Addendum.
8. Monitoring Customer Conduct and Data
Company may, but is under no obligation to, monitor Customer Data created using our Services. Company may disclose information necessary or appropriate to satisfy our legal obligations, protect our rights or the rights of our other customers, or operate the Services properly and securely. Company, in its sole discretion, may refuse to post, remove, or require Customer to remove, any Customer Data alleged to be illegal, infringing, unacceptable, undesirable, inappropriate, or in violation of this Agreement. Company may, in its discretion, also require Customer to place all or any portion of Customer Data behind password protection. If Company requests that Customer place any Customer Data behind password protection and Customer fails to do so, Company may (a) place such Customer Data behind password protection, or (b) immediately terminate this Agreement.
Company reserves the right to withhold, remove, and/or discard Customer Data without notice as a result of Customer’s breach of this Agreement.
9. Customer’s Responsibility for Patient Information, Hosted Websites, and Transmitting Messages
9.1 Patient Information.
The Services provided may enable Customer to upload and store patient information to a site hosted by Company (the “Hosted Site”). State and Federal laws, as well as ethical and licensure requirements of Customer’s profession, may impose obligations with respect to patient confidentiality that may limit Customer’s ability to make use of certain Services or to transmit certain information to third parties. Customer represents and warrants that Customer will comply with all applicable laws, rules, and regulations that govern the collection, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of patient information and will use its best efforts to cause all persons or entities under Customer’s direction or control to comply with such laws. Customer is solely responsible for obtaining, maintaining, and verifying that Customer has obtained and is maintaining all patient consents and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view patient information that Customer transmits, processes, and stores in connection with the Hosted Site and the Services. Customer agrees that Company, its licensors, and all other persons or entities involved in the operation of the Services, have the right to monitor, retrieve, store, and use patient information in connection with the operation of the Services, and is acting on Customer’s behalf in transmitting patient information.
COMPANY CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR CUSTOMER’S USE OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION TRANSMITTED, UPLOADED, OR STORED USING THE HOSTED SITE OR THE SERVICES. CUSTOMER AGREES TO INDEMNIFY COMPANY, ITS PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS, AND AFFILIATES FROM ANY CLAIM, ACTION, OR CAUSE THAT MAYBE BROUGHT AGAINST CUSTOMER IN THE EVENT THAT PATIENT INFORMATION IS COMPROMISED DUE TO ITS NEGLIGENCE OR FAILURE TO SECURE IDS.
9.3 Consent to Transmit Messages.
Customer may use the Services to use or transmit Customer Data or direct the Services to make contacts via any channel (in either case, “Messages”) to, or with, recipients of the Messages (the “Recipients”). Customer is solely responsible for securing any and all consents or authorizations from Recipients that may be required by applicable law including for transmitting Messages through the Services.
For the avoidance of doubt, in Customer’s use of the Services, Customer represents and warrants that:
(a) Customer has the legal right to use all Customer Data and to send all Messages to Recipients (after obtaining appropriate consents from Recipients) and the content, timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations, including, but not limited to, HIPAA, the GDPR, the ePrivacy Directive, the Telephone Consumer Protection Act and implementing regulations at 47 CFR Part 64, Subpart L, (collectively, “TCPA”), the CAN-SPAM Act of 2003 (“CAN-SPAM”), and the Canadian Anti-Spam Law (“CASL”).
(b) Customer has obtained all required consents and/or authorizations, as may be required by HIPAA, the GDPR, the ePrivacy Directive, the TCPA, CAN-SPAM, CASL, or other applicable law or regulation, prior to using Customer Data. Customer will not transmit or allow to be transmitted any Customer Data or Messages for which Customer does not have legally sufficient consent or authorization from Recipient.
(c) Customer has implemented policies and procedures to honor a Recipient’s request to opt-out of any Messages, campaign, or program transmitted by Customer through the Services.
(d) In the event that a Recipient notifies Customer that he or she has revoked his or her consent or authorization, as may be required for Customer to transmit Messages through the Services, Customer shall immediately cease to utilize the Services to transmit Messages to such Recipient and implement any and all steps that are required to deactivate any script or automated delivery of Messages scheduled to be sent to such Recipient.
9.4 Use of the Service to Transmit Messages.
Customer acknowledges and agrees that Customer is the transmitter of all Customer Data and Messages and Company is merely acting at Customer’s direction as a technology conduit for the transmission of such Customer Data and Messages and that Company assumes no responsibility or liability relating to or arising from Customer’s practices for obtaining legally-sufficient consents for use of Customer Data and transmission of Messages.
Any questions, comments, suggestions, ideas, feedback, or other information that Customer provides to Company (collectively, “Feedback”) are not confidential and Customer hereby grants Company a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Feedback as Company deems appropriate, for any and all commercial and/or non-commercial purposes, in Company’s sole discretion.
11. Customer Products and Services
In offering Customer Commercial Products, Customer represents and warrants that:
(a) Customer Commercial Products comply with all applicable laws, rules, and regulations; items identified as “not for sales and/or distribution within the United States” may not be sold using the Services;
(b) Customer Commercial Products (i) do not infringe, or have the potential to infringe, the intellectual property, proprietary, or privacy rights of a third-party; and (ii) are not libelous, slanderous or otherwise defamatory;
(c) Customer will not use the images, names, or the likeness of any third-party when offering or selling Customer Commercial Products without first obtaining all required consents and authorization from such third-party;
Company may immediately remove content related to the offer or sale of Customer Commercial Products in violation of this Agreement.
12. Call Recording
Company may record: (a) calls between Customer and Company’s agents and/or employees regarding the Services, including for purposes of providing technical support (“Service Calls”); and (b) incoming calls, on Customer’s behalf as a Service, including but not limited to, calls from Customer’s prospective clients (the “Inbound Calls” and, collectively with Service Calls, “Call Recording”). Customer consents to Call Recording and acknowledges that Customer is solely responsible for providing and/or obtaining all legally required notices and consents from its agents, employees, patients, and customers who may be recorded in a Service Call or Inbound Call (the “Recorded Persons”). Customer agrees to provide and/or obtain all legally required notices and consents from the Recorded persons and to comply with all applicable laws, rules, and regulations regarding call recording, monitoring, and privacy. Customer shall assume all responsibility and liability for Call Recording, including any preclusion of the applicability of a privilege (including, but not limited to, doctor-patient or attorney-client privilege) with respect to information from Recorded Persons collected during the Call Recording.
13. Support for the Services
In connection with Company’s provision of technical support, training, and other services, Company may remotely log-in to Customer’s computers, systems, and devices for purposes of providing the support, training, or other services, including, without limitation, technical trouble shooting, answering questions, benchmarking, and providing training to Customer or Customer’s personnel. Remote login may be conducted through the use of third-party entities.
Company reserves the right to: (i) log off accounts that are inactive for an extended period of time; (ii) quarantine suspected messages; (iii) modify domain and user settings with or without notice, including without limitation, altering settings so that junk or bulk email is denied.
Customer agrees that Company may automatically check the version of the Services that Customer is utilizing and may provide updates or upgrades remotely via the Internet. Customer consents to the receipt of updates or upgrades by means of download to Customer’s computers, devices, and systems.
Customer agrees to keep Customer’s computers, devices, and systems powered on during the Services runtimes that Customer specifies. Customer must add Company or Company’s third-party affiliate to the authorized list of programs. Additionally, Customer’s practice management software must always be accessible by Company. It is Customer’s responsibility to contact Company if Customer is upgrading or changing Customer’s computers, devices, and systems.
The fees for the Services and any additional products or services provided hereunder shall be specified in the Order Form (the “Fees”). Unless otherwise specified in the Order Form, the Fees will be charged on a monthly basis and shall be due in the month following the month such Fees were incurred. Any additional charges, including set-up, implementation, and other one-time Fees, shall be due on the date that Customer signs the Order Form. All Fees due under this Agreement and in the Order Form are in United States Dollar (USD). Any transaction other than USD will be subject to different currency rates.
Company reserves the right to modify the Fees at any time upon notice (provided that prior notice will not be required if pricing increases are due to domestic rate changes or other events beyond Company’s control), and such changes or modifications may be provided by an email message to Customer, or in such other form of communication as may be designated by Company from time to time.
Customer agrees to provide Company with a valid credit card number, debit card number, or checking account number, unless otherwise designated in the relevant Order Form, which Company will store and automatically charge for all Fees as they become due. By submitting a credit or debit card number, Customer authorizes Company in its complete discretion to submit a financial transaction(s) to Customer’s issuing bank for settlement. Customer expressly agrees that Company is authorized to store Customer’s credit or debit card number and charge such credit or debit card for: (a) any past Fees in their entirely, (b) an automatic, recurring monthly Fee for any applicable Services billed on a monthly basis; (c) any other Fees for Services that Customer may purchase, and (d) any applicable taxes in connection with Customer’s use of the Services. Customer is solely responsible for keeping Customer’s contact and payment information current. Customer hereby authorizes Company to continue billing the payment method on file, unless and until Customer cancels its subscription to the Services.
If payment by Customer’s credit card or other payment method is denied, or Customer otherwise fails to make any payments owing to Company, Company may, at its sole discretion, suspend or terminate Customer’s access to the Services and/or terminate this Agreement. Interest charges of 1% per month (or the highest rate permitted by law if lower than 1% per month) calculated daily and compounded monthly will apply to any unpaid balance which is more than thirty (30) days overdue. Customer shall reimburse Company for all reasonable costs and interest incurred by Company in collecting any late payments or overdue amounts, including attorney’s fees, court costs, and collection agency fees.
Company reserves the right to impose a reconnection fee in the event Customer requests to resume access to the Services after a previous termination of access.
COMPANY CHARGES AND COLLECTS IN ADVANCE FOR THE SERVICES. ALL FEES ASSOCIATED WITH THE SERVICES ARE NON-REFUNDABLE.
All Fees are exclusive of taxes. Customer shall be responsible for any and all taxes related to this Agreement. Customer shall indemnify, defend and hold harmless Company and its officers, employees, and agents for any and all losses, costs, expenses, and liabilities (including but not limited to taxes, judgments, penalties, and interest) associated with taxes found to be applicable to Customer and due from Customer with respect to the Services, or any portion thereof, or otherwise due in connection with this Agreement (other than with respect to taxes due on the income of Company).
16. Term and Termination
16.1 Initial Term.
This Agreement shall commence on the start date of Customer’s subscription to the Services and will remain in effect for an initial term as stipulated in the Order Form (the “Initial Term”).
16.2 Auto-renew; Renewal Term.
Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”) equal in duration to the Initial Term at the then-current Fees, unless Customer provides Company with written notice of Customer’s election not to renew at least thirty (30) days prior to the expiration of the then-current Term.
If Customer is seeking to terminate this Agreement prior to the expiration of the then-current Term, Customer may be subject to an early termination fee equal to the remaining balance of Fees for the then-current Term (a “Termination Fee”). The Termination Fee shall be due upon Customer’s termination of this Agreement.
Company may suspend Customer’s access to the Services or immediately terminate this Agreement upon the occurrence of any of the following: (i) Customer’s breach of this Agreement or other agreements and guidelines governing Customer’s use of the Services, or (ii) Customer’s failure to make any payment when due.
Customer agrees and acknowledges that Company has no obligation to retain Customer Data following the expiration or earlier termination of this Agreement and may delete such Customer Data in accordance with HIPAA data retention policies without prior notice. Upon termination of this Agreement, the licenses granted hereunder will immediately terminate, and Customer will promptly return to Company all Confidential Information related to the Services or destroy all such materials and provide certification thereof.
Unless expressly authorized in writing by the other party, neither party shall disclose to any third party any Confidential Information of the other Party, nor use such Confidential Information in any manner other than to perform its obligations under this Agreement. “Confidential Information” means any non-public information and/or materials provided by a party under this Agreement to the other party and reasonably understood to be confidential.
18. Disclaimer of Warranties
THE SERVICES AND ALL CONTENT IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS LICENSORS DISCLAIM ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WITHOUT LIMITING THE FOREGOING AND EXCEPT AS SPECIFICALLY STATED HEREIN, COMPANY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, (B) THE SERVICES WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; NOR DOES COMPANY OR ITS LICENSORS MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICES. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
In addition, Customer acknowledges and agrees that the data, information, content, or materials contained in or made available in connection with the Services do not constitute legal advice. Customer is solely responsible for obtaining advice from legal counsel.
Customer agrees to defend, indemnify, and hold Company, its parents, members, subsidiaries, officers, directors, employees, licensors, partners, and affiliates harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with: (a) a claim alleging that any Customer Data, whether provided by Customer or its affiliates, infringes the rights of, or has caused harm to, a third party; (b) a claim, which would constitute a violation by Customer of its representations and warranties made herein; (c) a breach by Customer of this Agreement; (d) a claim arising from Customer’s contravention of any applicable local, state, national, or foreign law or regulation; (d) a claim arising from any products or services that Customer offers on or through the Services; or (e) a third-party claim arising from Customer’s use of the Services.
20. Limitation of Liability
IN NO EVENT SHALL COMPANY, ITS PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS, AND AFFILIATES BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL, EXEMPLARY, OR OTHER DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOST PROFITS, AND COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE, OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF COMPANY SHALL BE LIMITED TO THE AMOUNT PAID TO COMPANY BY CUSTOMER HEREUNDER DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
21. Dispute Resolution; Arbitration
Before initiating any arbitration proceeding, the parties will first discuss the matter informally for at least thirty (30) days. If the parties are unable to mutually agree upon a resolution during such 30-day period, then any claim regarding this Agreement and/or the Services will be resolved through binding arbitration administered by JAMS and governed by the then current JAMS Streamlined Arbitration Rules and Procedures. Regardless of any statute or law to the contrary, an arbitration proceeding for any claim or cause of action must be brought within one (1) year after such claim or cause of action arose or such claim is waived. As an exception to this arbitration agreement, the parties have the right to pursue in small claims court any claim that is within that court’s jurisdiction as long as such party proceeds only on an individual basis.
The parties agree to arbitrate with only in their individual capacity, not as a representative or member of a class. No claims may be joined with any other claims and there will be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative.
Arbitration will be exclusively held in Los Angeles County, California and each party will be responsible for its own costs, including paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. In order to select an arbitrator, each party will provide a list of two available arbitrators that have experience with the subject matter of the dispute. Each party may strike one of the names on the other party’s list. The parties will select an arbitrator out of the remaining two arbitrator names. If the parties cannot mutually agree on one arbitrator, JAMS will choose the arbitrator randomly from the two remaining arbitrators. The arbitrator’s decision will be binding and may be entered as a judgment in any court of competent jurisdiction. By entering into this Agreement, each parties acknowledges that such party has had the opportunity to have their legal counsel review this Agreement and that such party fully understand the terms and conditions set forth herein and the effect of entering into this Agreement.
22. Force Majeure
Company will not be responsible for any delay, interruption, or other failure to perform under this Agreement due to acts beyond its reasonable control (“Force Majeure Events”). Force Majeure Events include, but are not limited to: natural disasters; power surges or failures; wars, acts of military authorities, riots, terrorist activities, and civil commotions; activities of local exchange carriers; inability to secure raw materials; transportation facilities; fuel or energy shortages; unavailability of telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of Company.
23. Additional Terms for Specific Services
23.1 Trial Services.
If Customer registers for a trial use of the Services (a “Trial Period”), Customer must decide to purchase the Services within the Trial Period in order to retain any content that Customer has posted or uploaded during the Trial Period. If Customer does not purchase the Services by the end of the Trial Period, any applicable content will no longer be available and Customer cannot access or retrieve any of the data added or created during the Trial Period.
23.2 Email Product Finder.
Customer may be subject to an additional monthly service fee for Email Product Finder. All pricing is per valid email returned each month, and prices are subject to change in accordance with Section 14 above. We may work with a third-party provider to provide Email Finder and Customer’s use of Email Finder is subject to Section 3 above.
23.3 Print Product.
Customer acknowledges and agrees: (a) that Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to the use any content submitted in connection with the Print Product; and (b) in the event that Customer submitted incorrect content, Customer shall pay any associated correction fees.
23.4 Listing Service.
Company may offer a complimentary listing service (the “Listing Service”) under which Customer’s business information and client and/or patient reviews (collectively, “Customer Business Information”) are submitted to search engines, indexes, and other third-party websites (collectively, “Third-Party Websites”). Customer agrees: (a) to participate in the Listing Service; and (b) to allow Company to submit and register Customer Business Information with Third-Party Websites. We do not guarantee the acceptance of such submissions by Third-Party Websites. Customer may request in writing to remove Customer Business Information from websites that are controlled by us; provided, however, that we are not obligated to request Third-Party Websites to remove such Customer Business Information. Additional tools may be made available by Third-Party Websites to Customer and we will not be responsible for any loss or damage arising out of Customer’s use of such tools.
If Customer cancels its subscription to the Services, we may remove Customer Business Information from websites controlled by us. We reserve the right to terminate the Listing Service, at any time, for any reason or no reason.
23.5 Demandforce Connect for Facebook.
By subscribing to Demandforce Connect for Facebook, Customer agrees to pay any additional installation and monthly subscription fee(s) in connection with the Demandforce Connect for Facebook subscription. Such subscription will automatically renew at the then-current subscription rate, along with the renewal of this Agreement, unless Customer provides notice of non-renewal. We will not be responsible for, and makes no warranty as to, the content published on Customer’s Facebook pages, or any other matter related to Customer’s use, or that of others, of Facebook, its applications, features, and functions.
23.6 Demandforce Connect for Websites.
By subscribing to Demandforce Connect for Websites, Customer agrees to pay any additional fee(s) in connection with the Demandforce Connect for Websites subscription. Such subscription will automatically renew at the then-current subscription rate, along with the renewal of this Agreement unless Customer provides notice of non-renewal. We will not be responsible for, and make no warranty as to, the content published on Customer’s website pages, or any other matter related to Customer’s use, or that of others, of websites, its applications, features, and functions.
23.7 Demandforce Connect for Mobile.
By subscribing to Demandforce Connect for Mobile, Customer agrees to pay any additional fee(s) in connection with the Demandforce Connect for Mobile subscription. Such subscription will automatically renew at the then-current subscription rate, along with the renewal of this Agreement unless Customer provides notice of non-renewal.
23.8 Directory Services.
Company may include Customer Directory Information (as defined below) in Company’s: (a) Public Provider Directories, which are electronic directories for patients and the general public; and (b) Professional Provider Directories, which are directories for Providers and other members of the healthcare community (collectively, “Provider Directories”). Provider Directories may be made available in various electronic formats, including searchable databases, Provider landing pages, interactive reference tools, and integrated look-up features, among others. They may also incorporate information designed to help users, such as integrated maps, and licensure confirmation tools, among others. Provider Directors may include a “contact” feature that allows users to contact other users directly. Our Public Provider Directory may be made available to public search engines. Listing in the Provider Directories is subject to eligibility criteria. If Customer meets the applicable criteria, some or all of Customer’s Directory Information will be automatically included in the applicable Provider Directories, unless Customer informs Company in writing that Customer wishes to be excluded. In addition, unless Customer inform us in writing that Customer wishes to be excluded from the Provider Directories, Company may provide Customer’s Directory Information and Customer’s patients’ reviews of your services to our third-party partners who may include Customer’s Directory Information and the patient review information on their websites.
“Customer Directory Information” includes the Customer’s name, names of physicians or other healthcare professionals associated with a Customer, associated specialties, Customer’s business telephone numbers and physical addresses, and the Customer’s available appointment slots, as each is indicated from information a Customer has inputted or imported into the Services. Customer Directory Information may include additional information you input or upload into profile tools we make available through the Services. Upon termination of this Agreement by either party, the Customer Directory Information and any consumer reviews may remain in any data feeds provided to third-parties but is subject to removal at any time as determined by Company. Notwithstanding the foregoing, Company is not a referral service and does not recommend or endorse any particular customer. Company may use proprietary processes and algorithms to select, compile and adjust certain data to generate ratings. Ratings compiled are opinion and not statements of fact.
23.9 Video Services
Customer may be subject to an additional fee for Video Services and a minimum Term commitment may be required. A cancellation fee may apply if Customer cancels a scheduled shoot with less than forty-eight (48) hour prior notice. Customer must approve all videos via an online preview system. Customer will be deemed to have approved of the videos if Customer fails to provide approval, via the online preview system, within five (5) business days from the date that the video was available for preview.
The videos are the sole and exclusive property of Company. During the Term of this Agreement, Company grants to Customer a revocable, non-exclusive, non-transferable license to publicly perform and publicly display the videos solely for Customer’s own business purposes.
23.10 Hosted Websites.
If the Services include domain registration, Customer agrees to the terms of Company’s Domain Name Service Agreement, which is hereby incorporated by this reference.
Customer acknowledges and agrees that Company has the right to place disclaimers, the Company name, logo, and hyperlink in the footer of the Hosted Site. Customer further acknowledges and agrees to grant Company with access to Customer’s domain registrar in order for Company to update Domain Name System records. Customer’s failure to provide such access may prevent or delay Customer’s website from becoming operational. Company will not be responsible for any loss or damage incurred as a result of Customer’s failure to provide such access.
25. Copyright Policy
If Customer believes that any content infringes Customer’s copyrighted works, Customer may provide a notification of claimed copyright infringement to our Designated Agent for copyright complaints. Please see our Copyright Complaint Policy for further information.
26. General Provisions
26.1 Entire Agreement.
This Agreement, including the Order Form constitutes the entire agreement between Customer and Companies with respect to the subject matter hereof and shall supersede any prior agreements, negotiations, understandings, or any other communications.
26.2 Modification to Terms.
Modifications to this Agreement shall become effective immediately upon posting of an updated version of this Agreement to the website applicable to the Services. Customer is responsible for regularly reviewing this Agreement.
If any provision of this Agreement is otherwise held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
26.4 Governing Law; Jurisdiction.
This Agreement is governed by the laws of the State of California, without regard to its conflict of laws principles. For any claims, causes of action, or disputes arising out of this Agreement which are not subject to Section 21 (Dispute Resolution; Arbitration), the parties irrevocably consent to the exclusive jurisdiction and venue in the federal and state courts located in the County of Los Angeles, California and waives the right to challenge the jurisdiction of such courts on grounds of lack of personal jurisdiction or forum non conveniens or to otherwise seek a change of venue. The aforementioned choice of venue is intended by the parties to be mandatory, and not permissive, in nature.
Regardless of any statute or law to the contrary, any such claim or cause of action must be filed within one (1) year after such claim or cause of action arose or such claim is waived. All claims filed or brought contrary to this Section will be considered improperly filed. Should either party file a claim contrary to this section, the non-filing party shall be entitled to seek to recover reasonable attorneys’ fees and costs provided that the non-filing party has notified the filing party in writing of the improperly filed claim and the filing party has failed to properly withdraw the claim.
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.
Customer shall not have the right to assign or transfer any obligations or benefit under this Agreement without the prior written consent of Company. Any purported assignment in violation of this section shall be void. Except as otherwise provided herein, this Agreement shall be binding on and inure to the benefit of the respective successors and permitted assigns of the parties.
26.6 Export Restrictions.
Customer acknowledges that the Services, or any portion thereof, may be subject to U.S. export restrictions. Customer agrees to comply with all applicable international and national laws that apply to the Services, or any portion thereof, including the U.S. Export Administration Regulations, as well as destination and all other restrictions issued by U.S. and other governments.
All notices and other communications required or permitted to be given by Company to Customer under this Agreement will be deemed to be properly given on the date such notice or communication was sent to Customer’s email address or postal address on record. All notices and other communications required or permitted to be given by Customer to Company under this Agreement will be deemed to be properly given upon the expiration of forty-eight (48) hours after mailing to 909 N. Pacific Coast Highway, 11th Floor, El Segundo, CA 90245, Attention: Legal Department.
26.8 No Waiver.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. A waiver shall not be effective unless it is in writing and signed by the party against whom the waiver is being enforced.
26.9 Independent Contractor.
Notwithstanding any provision hereof, for all purposes of this Agreement, the parties are independent contractors and nothing contained herein shall be deemed to create a partnership, agency, joint venture, or employment relationship.
26.10 Section Headings.
Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement.
Updated and effective as of January 29, 2020.