Terms of Service Agreement

Last Updated: October 1, 2014

This Terms of Service Agreement (this “Agreement”) is an agreement between you (“you”, “your”) and MH Sub I, LLC dba Baystone Media/ TheOnlinePractice.com / OnlineChiro.com / OnlinePodiatrySites.com / ECPWebsiteStore.com / ECPSocial.com (collectively, the "Company", "we", or "us").  

We provide you with access to certain Materials (as defined below) to help you create and manage your practice. We may provide website and hosting services, general and personalized content, mobile applications, and other tools and services (each a “Service,” and collectively, the “Services”) directly and through the website and associated domains and applications of http://www.baystonemedia.com (collectively, the “Site”).  

By clicking “I agree,” or by otherwise signing up for an account, or by accessing or using the Services, you agree to be bound by this Agreement, our Privacy Policy, and any other legal notices, conditions or guidelines we provide related to the use of the Site or Services.

1. What We Own

All material and products available on the Site and through the Services, including, but not limited to, software, software documentation, all informational text, design of and "look and feel," layout, photographs, graphics, audio, video, messages, interactive and instant messaging, design and functions, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the "Materials"), are owned by us or other parties that have licensed their material or provided services to us, and are protected by copyright, trademark, trade secret and other intellectual property laws.  All Company trademarks and service marks, logos, slogans and taglines are the property of Company.  All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners.  Except as otherwise specifically provided herein, nothing should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed of Company without our express written permission, or the express written permission of such third-party that may own the trademark, service mark, logo, slogan or tagline. 

2. YourRights to Use What We Own or License

We will provide you one User ID (defined below) for each account held by you, thereby permitting you access to the Materials, unless additional User IDs are requested and approved.  You agree to fully and accurately provide the information requested by us when setting up your accounts and to regularly update such information.  Your failure to do so may result in the cancellation of your account and loss of Services.  You further agree (a) not to provide User IDs to anyone who is not your employee, and (b) to ensure all individuals permitted to use the User IDs are aware of and have agreed in writing to comply with the terms of this Agreement. 

Subject to this Agreement, we grant you a limited, revocable, non-transferable and non-exclusive license to use the Materials through a user identification reference (“User ID”) to the extent, and only to the extent, necessary to access and use the Services in accordance with the terms of this Agreement.  This license does not permit you, and you agree not 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 Materials, or otherwise distribute in any way the Materials other than as specifically permitted in this Agreement.  You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Materials, create derivative works based on, or in any manner commercially exploit the Materials, in whole or in part, other than as expressly permitted in this Agreement.  You will not reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Any use of the Materials for any purpose other than as specifically permitted herein or without our prior written consent or the prior written consent of our licensors, as applicable, is expressly prohibited. You further grant us the right to place disclaimers, our Company name, logo and hyperlink in the footer of your Hosted Site (defined below). We reserve all rights not expressly granted in this Agreement.

The Services may include certain third-party software and services, which may require that you enter into separate subscription or licensing agreements with third-party vendors. You will comply with and, upon request, execute, any agreements that may be required for the use of such software or services, and to comply with the terms of any license or other agreement relating to third-party products included in the Services or made accessible to you through the Services. Your use of the Services or of such third-party products or services will constitute your agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use. 

You agree that the Materials available through the Services are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute your professional judgment. We are not responsible for the accuracy or completeness of Materials available from or through the Services. You assume full risk and responsibility for the use of materials you obtain from or through our Services.

If you are using our Materials featuring a model or property with a subject that would be unflattering or unduly controversial to a reasonable person, you must accompany such use with a statement that indicates that (a) the Material is being used for illustrative purposes only; and (b) any person depicted in the Content is a model.

3. What You Provide to Us

You are legally responsible for all Your Health Information (defined below), data, text, software, music, sound, photographs, graphics, video, survey responses, messages or other materials uploaded, posted or stored in connection with your use of the Services (collectively, “Content”).  You hereby grant us a worldwide, royalty-free, non-exclusive license to host and use the Content in order to provide you with the Services, and you hereby represent and warrant that you have all the rights necessary and are in compliance with all laws to grant us such license. You acknowledge that potential customers may rely upon the Content when selecting a practitioner and you agree that the Content you or your practice submits will be accurate, complete and not misleading in any respect.  You are responsible for any Content that may be lost or unrecoverable through your use of the Services.  You are encouraged to archive your Content regularly and frequently.  

4. Monitoring What You Provide Us

We may, but have no obligation to, monitor Content created using our Services.  We may disclose any information necessary or appropriate to satisfy our legal obligations, protect us or our customers, or operate the Services properly.  We, in our sole discretion, may refuse to post, remove, or require you to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.  We may, in our discretion, also require you to place all or any portion of the Content behind password protection.  If we have requested Content be placed, or have placed Content behind password protection, you may not publish the password or similar information in any way that limits the effectiveness of the password.  If we request that you place any Content behind password protection and you fail to do so promptly, we may (a) place such Content behind password protection itself, or (b) immediately terminate this Agreement.

5. Your Conduct

You agree to and represent to us all of the following: 

  • You are responsible for all activity occurring under your account.
  • You will not share your password or let anyone else access your account except for your designated staff, or do anything that might jeopardize the security of your account.
  • You are the practitioner identified in the account or are expressly authorized to act on behalf of the practitioner identified in the account.
  • You are using your actual identity and you have only provided true, accurate, complete information about yourself and will update any information as needed in a timely manner.
  • You verify that your country of residence is the same as your billing address.
  • You will not use the Services or Materials for any unlawful purposes or to conduct any unlawful activity.
  • You may not upload, post, email, transmit or otherwise make available or initiate any Content that contains software viruses, worms, Trojan horses or any other computer code, files or programs that interrupt, destroy or limit the functionality of the Services or the Materials or that may impact the ability of any user to access the Services.
  • You will not access the Services through automated methods.  The Services may only be used or accessed through an electronic device via manual control at all times.
  • You may not send messages using the Services which do not correctly identify the sender and you may not alter the attribution of origin in electronic mail messages or postings. 
  • You will not attempt to or actually access the Services or Materials by any means other than through the interfaces provided by the Company. 
  • You will not attempt to or actually override any security component included in or underlying the Materials or Services.
  • You will not attempt to or actually engage in any action that directly or indirectly interferes with the proper working of the Company’s infrastructure, including placing an unreasonable load on the infrastructure.

You represent and warrant that any Content submitted by you or your practice or transmitted by or on behalf of you will not contain any of the following:

  • Material that is false, factually inaccurate or misleading;
  • Material that is defamatory, libelous, deceptive or fraudulent;
  • Material that discriminates against, ridicules, harasses or disparages an individual or group for any reason, or on the basis of race, religion, national origin, gender, sexual orientation, marital status, age or disability; 
  • Material that violates any U.S. or foreign law or regulation, including without limitation any law or regulation governing advertising or testimonial;
  • Material that would cause us, to the extent that we use the Content as permitted under this Agreement, to violate any U.S. or foreign law or regulation;
  • Material that violates any person’s privacy right, including any such rights a person might have under HIPAA (as defined below); 
  • Material that violates any rights under CAN-SPAM, CASL or any other spam law;
  • Material that infringes or violates any person’s copyright, trademark or other intellectual property right; 
  • Material that is obscene or derogatory or contains any adult-oriented content, like sexual material; 
  • Material that promotes violence, firearms, ammunition or weapons designed to inflict serious bodily harm; 
  • Material that may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
  • Material that may create a risk of any other loss or damage to any person or property;
  • Material that may constitute or contribute to a crime or tort;

We may determine, in our sole discretion, whether or not an account is in violation of any of these policies.  Violation of any of these policies may result in user information tracking with such information being stored to identify the offending user.  Offending users may be permanently restricted from holding an account or using the Services.  If we determine that your account is being used for illegal or fraudulent activity then your account may be immediately terminated and your financial data erased.  We may also report you to law enforcement officials in the appropriate jurisdictions. 

 

6. HIPAA and Laws

In accordance with the provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including the Privacy Rule and Security, as amended (“HIPAA”), you agree to follow and abide to the following (all undefined terms in Sections 6, 7, 8, 9, and 10 have their meaning defined by the HIPAA regulations):

  • Ensuring that your use of the Services complies with applicable law, including but not limited to laws relating to maintenance of privacy, security, and confidentiality of patient and other health information. 
  • Implement and maintain appropriate administrative, physical and technical safeguards to protect information within the Services.
    • o    Such safeguards must comply with federal, state, and local requirements, including the Privacy Rule and the Security Rule.
  • Maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your workforce to transmit, store and process electronic health information through the use of the Services.
  • By using our Services, you consent to the terms of our Company Business Associate Agreement  and you agree to protect any information received through such communication services in accordance with the terms of such business associate agreement.

Specially Protected Information:

We apply the standards of the Privacy Rule in permitting access to the Services.

  • You acknowledge that other federal and state laws impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals.
  • You agree that you are solely responsible for ensuring that personal health information is subject to the restrictions of the Privacy Rule and applicable law. In particular, you will:
    • o      not make available to other users through the Services any information in violation of any restriction on use or disclosure (whether arising from your agreement with such users or under law);
    • o      obtain all necessary consents, authorizations or releases from individuals required for making their personal health information available to us; and
    • o      include such statements (if any) in your notice of privacy practices as may be required.

We are committed to maintaining the confidentiality of information entrusted to us, especially individually identifiable personal and health information. We follow the policies and procedures our Company has documented in its HIPAA Privacy Policy and Security Policy. Some acquired companies, including their products and services may operate under their own privacy policies until we integrate their privacy practices with ours. You are responsible for determining if the Services meet your compliance standards.

7.   Our Use of Protected Health Information

Our Services may include use of your patients’ Protected Health Information that you or your personnel input or upload onto the Services or that we receive on your behalf from your authorized service providers or our third party partners (“Your Health Information”). You retain all rights with regard to Your Health Information, and we will only use such information as expressly permitted in this Agreement and our Business Associate Agreement. You authorize us, as your business associate, to use and disclose Your Health Information as follows:

  • We will permit access to Your Health Information by business associates to whom you have consented to provide access to the Services and who have otherwise agreed to integrate with our systems pursuant to appropriate assurances (i.e. practice management integration vendor). You acknowledge that once we have granted access rights to another provider or covered entity (or their respective business associates), we have no control over the uses and disclosures that the business associate makes of Your Health Information, and the recipient may be subject to its own legal or regulatory obligations (including HIPAA) to retain such information and make such information available to patients, governmental authorities and others as required by applicable law or regulation.
  • We may “De-Identify” (means health information that has been de-identified in accordance with the provisions of the Privacy Rule) Your Health Information and use and disclose de-identified information as provided by Section 8.
  • We may create limited data sets from Your Health Information, and disclose them for any purpose for which you may disclose a limited data set; and you hereby authorize us to enter into data use agreements on your behalf for the use of limited data sets, in accordance with applicable law and regulation.
  • We may use Your Health Information in order to prepare analyses and reports, such as activity or quality-metrics reports, or any other reports the Services makes available, in order to render these reports to you. Preparation of such analyses and reports may include the use of data aggregation services relating to your treatment and health care operations, which we may perform using Your Health Information. Such reporting will be done in a manner that does not make any disclosure of Your Health Information that you would not be permitted to make.
  • We may use Your Health Information for the proper management and administration of the Services and our business, and to carry out our legal responsibilities. We may also disclose Your Health Information for such purposes if the disclosure is required by law, or we obtain reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only (a) as required by law (as such term is defined in 45 CFR §164.103), or (b) for the purpose for which it was disclosed to the recipient, and the recipient notifies us of any instances of which it is aware in which the confidentiality of the information has been breached. Without limiting the foregoing, we may permit access to the system by our contracted system developers under appropriate confidentiality agreements.
  • We may use Your Health Information and Directory Information (defined below) to contact your patients on your behalf for certain Services, including (a) for treatment and health care operations messages, including sending appointment requests and reminders or post-visit treatment satisfaction surveys; (b) to request authorization on your behalf from your patients to use or disclose their health information for any purpose for which use or disclosure may be made with an appropriate authorization, including marketing purposes; and (c) to provide information about health-related products or services that you provide, or that we provide on your behalf as your business associate.
  • From time to time we may incorporate information we receive from your authorized service providers; (including Third-Party Services as discussed in Section 18) or our third party partners into the Services we provide to you. Such information may include, without limitation, clinical information such as lab results, imaging results, eligibility information, and prescription history; and shall, upon incorporation into the Services, be treated as “Your Health Information” for all purposes hereunder. You hereby authorize us to request and receive such information on your behalf from such authorized service providers or our third party partners.

8. De-Identified Information

In consideration of our provision of the Services, you hereby transfer and assign to us all right, title and interest in and to all De-Identified Information that we make from Your Health Information pursuant to Section 7. You agree that we may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof. You acknowledge that the rights conferred by this Section are the principal consideration for the provision of the Services, without which we would not enter into this Agreement.

9. Individuals’ Rights

You are solely responsible for affording individuals their rights with respect to relevant portions of Your Health Information, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the Services other than Your Health Information.

10. Electronic Communications

Use of the Internet and electronic communication tools are solely at your own risk and are subject to all applicable local, state, federal, and international laws and regulations. While we have endeavored to create secure and reliable Services, please be advised that the confidentiality of any communication or material transmitted to us over the Internet, including email, cannot be assured. You acknowledge that no method of transmission over the Internet, or method of electronic storage, including email, is 100% secure. 

10.1      Email

We retain the right, at our sole discretion, to restrict the volume of messages transmitted or received by you in order to maintain the quality of our email services to other customers and to protect our computer systems. Email Services may not be used for bulk mail or mass mailings.

  • o    Privacy and Security Rules

The Privacy Rule allows covered health care providers to communicate electronically, such as through e-mail, with their patients, provided they apply reasonable safeguards when doing so. See 45 C.F.R. § 164.530(c). 

  • Covered Entities are permitted to send individual unencrypted email if they have advised the individual of the risk and the individual still prefers the unencrypted email.
  • Covered Entities are not responsible for safeguarding information once delivered to the individual.
  • Patients may initiate communications with a healthcare provider using e-mail. If this situation occurs, the healthcare provider can assume (unless the patient has explicitly stated otherwise) that e-mail communications are acceptable to the individual. If the provider feels the patient may not be aware of the possible risks of using unencrypted e-mail, or has concerns about potential liability, the provider can alert the patient of those risks, and let the patient decide whether to continue e-mail communications.

You must ensure that any transmission of electronic protected health information is in compliance with the HIPAA Security Rule requirements at 45 C.F.R. Part 164, Subpart C and take the following precautions and when using e-mail or text Services to avoid unintentional disclosures:

  • Verify the e-mail address and phone number for accuracy before sending, or sending an e-mail alert to the patient for address confirmation prior to sending the message.
  • Limit the amount or type of information disclosed through the unencrypted e-mail or text message.

You further represent:

  • You have appropriate privacy notices warning patients about the potential security risks of transmitting protected health information using email over the non-secure portion of the Internet. 
  • You have accurately disclosed your practice’s privacy practices including mentioning you have business associates who may host, transmit and store personal information in connection with email, text, appointment reminders and other services.
  • You have obtained and documented patient consent to include personal health information in email and text message.
  • You will manually encrypt transmitted files including PHI that you are sending to patients.
  • o    CAN-SPAM

You agree to comply with all elements of CAN-SPAM and safe sender email practices. This includes but not limited to including unsubscribe links, your full contact information in all correspondence, and not releasing private and/or confidential information. You may only use email services for those customers with which you have an existing business relationship and which have indicated that they accept correspondence from you. You may not attempt to spoof sender domains, send spam or other offending email. Because of carrier technologies, we make no expressed or implied warranty of individual message receipt. We are not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.

10.2      Text Messages

We may automate text message communications as a Service, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them. The prior express written consent must identify that you may be sending text messages related to your goods and services using automated technology and that your customer affirmatively agrees to receive such messages. The prior express consent must include your customers’ written or electronic acceptance. Specifically, by entering a cell phone number into your management system or the Company system and not opting such cell phone out of the Company text message feature, you are directing Company to automatically send text message reminders and other communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages. For Canada based businesses, you agree to adopt the double opt-in process comprising of 1) you may only use text message services for those customers with which you have an existing business relationship and which have indicated that they accept correspondence from you and 2) the customers must reply to an opt-in message from their handset. For reliable delivery, you must adhere to message limitations including length and delivery. You are responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature. Additionally, you may not attempt to spoof sender domains, send spam or other offending text messages. We make no expressed or implied warranty of individual message receipt. Standard text message rates apply for all text message services. We are not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.

11.  Directory Services

We may include your Directory Information (defined below) in our (and our affiliates) (a) “Public Provider Directories,” which are electronic directories for patients and the general public; and (b) “Professional Provider Directories,” which are electronic directories for Providers and other members of the healthcare community ((a) and (b) 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 Directories may include a “contact” feature that allows users to contact other users directly through the Services. Our Public Provider Directory may be made available to public search engines to aid Provider discovery. Listing in the Provider Directories is subject to eligibility criteria, which may differ between the Public Provider Directory and Professional Provider Directory. If you meet the applicable criteria, some or all of your Directory Information will be automatically included in the applicable Provider Directory(ies), unless you inform us in writing that you wish to be excluded. In addition, unless you inform us in writing that you wish to be excluded from the Provider Directories, we may provide your Directory Information and your patients’ reviews of your services to our third party partners who may include your Directory Information and the patient review information on their websites. A Provider’s “Directory Information” includes the Provider’s name, name(s) of physicians or other healthcare professionals associated with a Provider, associated specialties, Provider’s business telephone number(s) and physical address(es), and the Provider’s available appointment slots, as each is indicated from information a Provider has inputted or imported into the Services. The Directory Information may include additional information you input or upload into profile tools we make available in the Services (such as a profile photograph, accepted insurance, available office hours, a front desk email address, and the like), as and when such tools are available. Upon termination of this Agreement by either party, the Business 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 us.  Notwithstanding the foregoing, we are not a referral service and do not recommend or endorse any particular healthcare provider. We 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.

12.  Data Consent for Services

In connection with our provision of technical support, training and other Services, you agree that we may remotely log-in to your computers, devices and systems for purposes of providing the support, training or other Services, including, without limitation, technical trouble shooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. You further agree that we may also remotely log-in at any time as necessary or appropriate to maintain our Services.

You agree that we may automatically check the version of a Service that you are utilizing and may provide updates or upgrades remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to your computers and systems. 

You agree to keep your computers powered on during the Services runtimes that you specify. You must add us or our third party affiliate to the “allowed” list of programs and ensure that your firewall and anti-virus software programs do not block us. Additionally, your practice management software must always be accessible by us. It is your responsibility to contact us if you are upgrading or changing your computer systems. 

13. Domain Terms

If your Services include domain registration, you are subject to and agree to the Domain Names Service Agreement, which is incorporated by reference.

14. Giving Us Access to Other Accounts and Services

Some of our Services may require you to give us access to or require you to provide login information and password information for accounts or services you may have with third party providers.  When you provide this information to us or give us access to these third party accounts, you agree that you have read all contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give us such access, login information and passwords. In addition, for certain Services, we grant us permission to create and submit content on your behalf to press release news outlets, directories, search engines, social media outlasts, and other destinations.

15. Video Services

If you choose Video Services, this includes a documercial video up to ninety (90) seconds and pre-roll video of approximately fifteen (15) seconds in length.  Videos may include the following features: footage captured on-location by single videographer (up to 1.5 hours), royalty-free music, professionally-written script, professionally-recorded voiceover, text/graphics where applicable, up to two (2) rounds of revision.

 

You will approve videos via an online preview system. Such approval will be automatic if you fail to approve video ad within five (5) business days from the date of availability of the video to be previewed. Once approved, the video will be syndicated to top video sharing sites. Pre-roll video will be used in top video advertising channels and generate monthly views in customer’s local market. If a shoot is cancelled less than forty eight (48) hours prior to the shoot, a shoot cancellation fee may apply. Each video, and all of the content will, as between the parties, be Company’ sole and exclusive property, and Customer hereby assigns all right, title and interest in and to videos, including the Content to Company.  Company grants you a nonexclusive, worldwide, royalty-free license to to publicly perform and publicly display the video for your business purposes.

16. Call Recording

We may record calls between you and our agents regarding the Services (“Service Calls”) and in connection with Services, incoming calls, on your behalf as a Service, from, among others, you prospective clients (the “Inbound Calls” and, collectively with Service Calls, “Call Recording”). You consent to Call Recording and acknowledge you are responsible for notifying Call Recording to your employees and agents who may be recorded in a Service Call or Inbound Call (the “Recorded Persons”). It is your sole responsibility to provide and/or obtain, and you covenant that you will provide and/or obtain, all notices and permissions relating to Recorded Persons as may be required by applicable laws and regulations.

17. Comments and Feedback

Any questions, comments, suggestions, ideas, feedback, or other information provided by you to us (“Comments”) are not confidential and you hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Comments as we deem appropriate, for any and all commercial and/or non-commercial purposes, in our sole discretion.

18. Pre-Release or Trial Services

If the Service is a pre-commercial release or beta version (“Pre-release Service”), then this section applies. The Pre-release Service is a pre-release version, does not represent a final product from Company, and may contain bugs, errors, and other problems that could cause system or other failures and data loss and may only be used for testing purposes. We may never commercially release the Pre-release Service. We may alter features, licensing terms, or other characteristics of any version of the Pre-release Service that it releases. If you received the Pre-release Service pursuant to a separate written agreement, (“Test Agreement”) for Pre-release Service, your use of the Service is also governed by the Test Agreement. If there is a conflict between this Agreement and the Test Agreement, the Test Agreement controls. You may not disclose, publish or disseminate any information regarding the Pre-release Service to anyone, including but not limited to any new features or faults to any Internet forums. YOUR USE OF PRE-RELEASE SOFTWARE IS AT YOUR OWN RISK. SEE SECTIONS 24 AND 25 FOR WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS THAT APPLY TO THE PRE-RELEASE SERVICE.

If you registered for a trial use of the Services ("Trial Period"), you must decide to purchase the Services within the Trial Period in order to retain any Content that you have posted or uploaded during the Trial Period. If you do not purchase the Services by the end of the Trial Period, your Content will no longer be available to you. To be very clear, after using the Services during the Trial Period, if you decide not to purchase the full version of the Services, you will not be able to access or retrieve any of the data you added/created during the Trial Period.

19. Third Party Services

The Site or Services may contain links to other web sites owned by third parties ("Third Party Sites"). Please note that when you click on any of these links, you are entering another website for which we have no responsibility or control. You may also have the ability through the Site to login to accounts that you have for services provided by third parties or want to use other services that can be integrated with our Services (“Third Party Services”). We are not responsible for any activity occurring within Third Party Services, even if logged in through or linked to a Company account. You are responsible for confirming a third party’s HIPAA compliance if the third party is not our subcontractor, if applicable.

You agree that we will not be responsible for any loss or damage of any sort incurred as a result of your use of any Third Party Sites and/or Third Party Services, whether or not you were linked to or directed to a Third Party Site or Third Party Service through the Site or Service, including any HIPAA violations.  You acknowledge that Third Party Sites and Third Party Services may be subject to the applicable third party provider’s terms of service, and you are solely responsible for reviewing and complying with any such terms of service.  In no event will any reference on the Site to any third party, third party website or third party product or service be construed as an approval or endorsement by us of that third party, third party website or of any product or service provided by a third party.

20. Your Products and Services

Some of our Services and Materials may offer you the opportunity to sell your goods and services (such goods and services, “Commercial Products”).  We are merely providing the platform for buyers and sellers to negotiate and complete transactions for these Commercial Products.  When a buyer purchases Commercial Products, payments will be processed through our third party payment service provider.  Buyers of Commercial Products will be provided a notice when entering their payment information, directing them to the third party payment service provider’s terms of service and privacy policy.  These payment services are governed solely by the third party provider’s terms of service and privacy policy.  We are not responsible for the actions of these third party service providers.  In addition to the other rules and requirements described in this Agreement, you must follow the rules listed below when offering, selling or purchasing Commercial Products:

  • Products sold using the Services must comply with all applicable laws, including Commercial Products sold to individuals outside of the U.S.  Items identified as “not for distribution within the United States” may not be sold using the Services.
  • You may not offer or sell Commercial Products that infringe or have the potential to infringe the intellectual property rights, or have the potential to infringe upon an individual’s privacy, or that may be libelous, slanderous or otherwise defamatory.
  • You may not use images or names of any third party (including notable personalities or celebrities) when offering or selling Commercial Products without first obtaining that third party’s permission. 

Without limiting anything else in this Agreement, we may immediately remove Content related to the offer or sale of Commercial Products in violation of this Agreement.  If you sell a Commercial Product using our Services, then you must, upon our request, (i) use commercially reasonable efforts to stop the delivery of the Commercial Products to the buyer, or (ii) pay a refund for such Commercial Products to the buyer.

21.  Fees 

The fees for each Service are specified in each invoice when you order a Service. You will be charged for the Services on a monthly basis, unless otherwise indicated in the order. All fees and charges are nonrefundable. If you choose to cancel your Services, you are still responsible for all fees associated with the remaining duration of your order.

Depending on the Services purchased, you agree to pay for the Services either via credit or debit card, ACH or within thirty (30) days of receipt of invoice.  If you are paying by credit or debit card, you expressly agree that we are authorized to charge you (i) a monthly Fee for any applicable Services billed on a monthly basis, (ii) any other fees for Services you may purchase, and (iii) any applicable taxes in connection with your use of the Services to the payment card you provide and to reimburse us for all collection costs and interest for any overdue amounts.  If the payment card you provide expires and you do not provide new payment card information or cancel your account, you authorize us to continue billing you and you agree to remain responsible for any uncollected fees. If your card expires or we cannot collect the fees for any reason, you have 30 days to provide a new valid credit or debit card for us to charge. If you do not provide new card information within 30 days, we will suspend the Services and will only reinstate them once you pay us what you owe plus interest which will accrue at a rate of 1.5% per month. 

We may change fees at any time by providing you 30 days’ notice by email or through your Service portal. Your continued use of the Services after the fee change is your consent to the change.

You are allowed space and a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount, we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the amount until you upgrade to a higher level package, terminate the account or charge you an additional fee for the overages. Unused bandwidth in one month cannot be carried over the next month.

22. Term and Termination

Your contract term will be specified on your invoice or order. You can opt to upgrade your service agreement to any other contract agreement that we are currently offering for sale at any time during your contract term.  All fees are non-refundable. If you cancel your services before the end of your contract term, you are still responsible for all fees associated with the remaining duration of the contract term. At the end of the contract term, your contract will automatically renew for additional contract term(s) of the same length until explicitly cancelled by you by providing at least 30 days’ notice prior to the end of the contract term.

We may suspend performance under or terminate this Agreement and cease transmission of data associated with your Services immediately without notice if (i) we determine in our sole discretion that you have breached any part of this Agreement including, without limitation, any warranty or obligation, (ii) your credit or debit card provider refuses payment of fees or chargers or you refuse authorization for the same, or (iii) if payment for the Services is more than thirty (30) days overdue.

We may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, or add, change and modify prices for all or part of the Services for you or for all our users at any time and in our sole discretion.  All of these changes will be effective upon their posting on the Site or by direct communication to you unless otherwise noted.  We further reserve the right to withhold, remove and or discard any content available as part of your account, with or without notice, if deemed by us to be contrary to this Agreement. For avoidance of doubt, we have no obligation to store, maintain or provide you a copy of any content that you or other users provide when using the Services.

Notice of termination of Services by us may be sent to the contact e-mail associated with your account. Upon termination, we have the right to delete all data, files, or other information that is stored in your account.

Upon any expiration or termination of this Agreement, the licenses and use rights granted hereunder will immediately terminate, and you will promptly return to us all confidential information related to the Services or destroy all such materials and provide certification thereof.

23. ERRORS AND ACCESS TO SITE 

YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND APPROPRIATENESS OF ALL DATA AND CONTENT WITHIN YOUR WEBSITE; INCLUDING ANY ELECTRONIC PERSONAL HEALTH INFORMATION. WE WILL NOT BE HELD RESPONSIBLE FOR INACCURATE INFORMATION AND ANY POTENTIAL DAMAGES CAUSED BY SUCH INACCURACIES OR YOUR BREACH OF PERSONAL HEALTH INFORMATION. YOU FURTHER UNDERSTAND THAT WE MAY NOT MAINTAIN COPIES OF FILES OR DOCUMENTS THAT ARE SENT BY YOU AND THAT YOU ARE SOLELY RESPONSIBLE FOR BACKING UP THIS DATA. 

24. DISCLAIMER OF WARRANTY 

THE SITE, SERVICES AND MATERIALS ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS LICENSORS WARRANT THAT ACCESS TO THE SITE, THE MATERIALS AND/OR THE SERVICES AVAILABLE ON OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES COMPANY OR ITS LICENSORS MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SERVICES, THE MATERIALS OR THE SITE.  YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND YOUR RELIANCE UPON THE SERVICES AND/OR THE MATERIALS IS AT YOUR SOLE RISK. IN ADDITION, COMPANY IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE SITE TO ANYONE. 

YOU ACKNOWLEDGE THAT ACCESS TO THE SERVICES WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES“) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.

FURTHER, WE EXPRESSLY DISCLAIM ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY MAKE WITH PATIENTS, CONSUMERS OR SITE USERS, AND YOU WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS. YOU WILL BE SOLELY RESPONSIBLE FOR THE PROFESSIONAL AND TECHNICAL SERVICES YOU PROVIDE. WE HAVE NO LIABILITY FOR THE CONSEQUENCES TO YOU OR YOUR PATIENTS OF YOUR USE OF THE SERVICES.

WE OFFER NO ASSURANCE THAT YOUR USE OF THE SERVICES UNDER THE TERMS OF THIS AGREEMENT WILL NOT VIOLATE ANY LAW OR REGULATION APPLICABLE TO YOU. COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICES OR THE MATERIALS OR THE SITE ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SITE, THE SERVICES OR THE MATERIALS OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.

IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT, TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.

25. LIMITATION OF LIABILITY

NEITHER WE, NOR OUR LICENSORS OR AFFILIATES ARE LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE COMPANY AND HOLD COMPANY AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND THEIR OFFICERS, DIRECTORS, TRUSTEES, AFFILIATES, SUBCONTRACTORS, AGENTS AND EMPLOYEES, HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, MATERIALS, SITE, YOUR CONTENT, COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGHTHE SITE.  YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, COMPANY, ANY OF ITS AFFILIATES OR LICENSORS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS IS LIABLE TO YOU FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, COMPANY’S TOTAL LIABILITY, IN RESPECT OF SUCH AMOUNTS, WILL NOT EXCEED THE AMOUNTS PAID BY YOU FOR THE SERVICES UNDER THIS AGREEMENT FOR SIX (6) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.

26. EXCLUSIVE REMEDY 

IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES, OR THE MATERIALS, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE, THE SERVICES AND THE MATERIALS.  UNDER NO CIRCUMSTANCE WILL COMPANY, ITS AFFILIATES, OR LICENSORS BE LIABLE IN ANY WAY FOR YOUR USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you. 

27. Indemnification

You agree to indemnify, hold harmless, and defend Company and its shareholders, licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, successors and assigns (collectively "Indemnified Parties") from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys' fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account’s) use of the Services, the Site or  the Materials, (ii) your Content, (iii) your breach of this Agreement, including any of your representations and warranties; (iv) your contravention of any applicable law, statute, ordinance or regulation, including, but not limited to, the CAN-SPAM Act of 2003, privacy laws and HIPAA, or (v) any Commercial Products you offer on or through the Site or using our Services.  This includes, but is not limited to, any breach or violation of this Agreement by you or anyone utilizing your account.  You agree to fully cooperate at your expense as reasonably required by an Indemnified Party.  Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder.  You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.

28. Modification

We may update or change the Services or the terms set forth in this Agreement from time to time and recommend that you review the Agreement on a regular basis. You understand and agree that your continued use of the Services after the Agreement has been updated or changed constitutes your acceptance of the revised Agreement. Without limiting the foregoing, if we make a change to the Agreement that materially affects your use of the Services, we may (but are not obligated to) post notice or notify you via email or our website(s) of any such change. No modifications of this Agreement will be effective unless agreed in writing by Company.

We may also, in the future, offer new services and/or features through Site (including the release of new tools and resources). For the avoidance of doubt, such new features and/or services will be subject to the terms and conditions of this Agreement.

29. Disputes

The formation, interpretation and performance of this Agreement and any disputes arising out of it will be governed by the substantive and procedural laws of the state of California without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of the United States of America.  The exclusive jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Los Angeles County, California and the Central District Court of California, respectively, and you hereby submit to the personal jurisdiction of such courts. This choice of venue is designed to be mandatory, and not permissive, in nature. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.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.

30. Privacy

Your use of our Services are subject to our Privacy Policy , as updated from time to time. By using the Services, you are consenting to the terms of the Privacy Policy and acknowledged that you have reviewed our Privacy Policy.

31. Copyright Complaint Policy

 If you believe any Materials infringe your copyrighted works, you may provide a notification of claimed copyright infringement to our Designated Agent for copyright complaints. Please see our Copyright Complaint Policy  for further information.

32. Other

You acknowledge that a violation or attempted violation of any of this Agreement will cause such damage to Company as will be irreparable, the exact amount of which would be impossible to ascertain and for which there will be no adequate remedy at law.  Accordingly, you agree that Company will be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of these terms and conditions by you, or your affiliates, partners, or agents, as well as to recover from you any and all costs and expenses sustained or incurred by Company in obtaining such an injunction, including, without limitation, reasonable attorney's fees. You agree that no bond or other security will be required in connection with such injunction.

In no event shall you be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of Company, the exploitation of any advertising or other materials issued in connection therewith, or the exploitation of the Site or any content used or displayed through the Site.

33. Terms You Must Post on Your Site

You are responsible for having a terms of use and privacy policy for any website hosted by us for you as part of the Services (your “Hosted Site”).  However, the terms of use for your Hosted Site must designate us as third party beneficiary and must contain intellectual property, limitations of liability, limitations of remedy, disclaimers of warranty and indemnification provisions each for the benefit of Company which are at least as favorable to Company as contained in this Agreement.   Your Hosted Site’s privacy policy at a minimum, must disclose any and all uses of personal information that you collect from users; (b) include a paragraph provided or approved by us that describes our collection and use of your customer's information; (c) provide a hypertext link to your privacy policy on the home page of your Hosted Site and on all pages where you collect personal information from users, including but not limited to all checkout pages; and (d) use personal information only as expressly permitted by your privacy policy. If Company offers templates for a terms of use or privacy policy, you understand these services are “as is” and with no warranty of any kind. Consult an attorney on your website’s practices. You agree to indemnify, defend and hold us harmless from and against any and all claims stemming from your failure to comply with this provision and/or your failure or refusal to abide by the terms and provisions of any applicable privacy policies or terms of use, or lack thereof.

34. Miscellaneous

This Agreement supersedes any written, electronic, or oral communication you may have had with us or any agent or representative thereof, and constitutes the complete and total agreement between the parties.  If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect. If we fail to enforce any of this Agreement, it will not be considered a waiver. You will not transfer any of your rights or obligations under this Agreement to anyone else without our prior written consent. All of our rights and obligations under this Agreement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law, corporate restructure, to any affiliate or otherwise. This Agreement does not confer any third party beneficiary rights. This Agreement does not create an agency, partnership or joint venture. All notices and other communications required or permitted to be given by us to you under this Agreement will be deemed to be properly given on the date when sent to your email address or postal address recorded for your account. All notices and other communications required or permitted to be given by you to us under this Agreement will be deemed to be properly given on the date when sent by postal mail or private courier to 909 N. Sepulveda Blvd., 11th Floor, El Segundo, CA 90245, Attention: Legal Department.