Terms of Service
Last Updated: April 9, 2020
- SET-UP FEES AND MONTHLY FEES. Customer will pay all Set-Up Fees, Monthly Fees & Other Fees (collectively the “Fees”) as invoiced by HME in US Dollars in the amount and within 30 days from receipt of invoice unless otherwise specified in the Agreement, plus all applicable taxes, charges, penalties and fees imposed by any governmental body (excluding any and all taxes measured by income of HME). Fees not paid timely shall incur a late charge equal to the lesser of (a) 1.5% of the outstanding balance per month or (b) the highest amount not deemed usurious by any applicable law. The Set-Up Fee shall be payable on the Effective Date unless otherwise specified in the Agreement. The Monthly Fee shall become due each month. HME will have the right to charge the Client Card or debit from your account through ACH for fees in accordance with these Terms. By providing HME with your payment information, you agree that HME is authorized, to the extent permitted by applicable law, to immediately charge such payment method for all fees and charges due and payable to HME hereunder and that, except as required by applicable law, no additional notice or consent is required. You agree to immediately notify HME of any change in the payment information used for payment hereunder. You understand and acknowledge that all amounts owed must be paid in advance and that if timely payment is not received, in addition to being in breach of your contractual obligations, the Service may be paused or terminated. Any amounts not paid by you when due may bear interest at the rate of 1.5% per month (or the highest rate permitted by law). You agree to pay all costs of collection, including attorney’s fees and costs and all other legal and collection expenses incurred by HME in connection with its enforcement of its rights under these Terms.
- SUBSTITUTIONS & MODIFICATIONS. HME may substitute any Product or Package with a substantially similar Product or Package under the Agreement without Customer’s consent, upon prior notice to Customer, if there is no additional Fee charged to Customer and, upon such substitution, the substituted Licensed Product or Package shall be deemed a Licensed Product or Package for the purposes of the Agreement. HME may add, remove or modify any features in the Products in its sole discretion.
- REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other that it is entitled and authorized to enter into the Agreement, and the person executing the Agreement is authorized to bind such party, including, with respect to Customer, on behalf of any Affiliates named in the Agreement. Each party, including, with respect to Customer, on behalf of any Affiliate named in the Agreement, represents, warrants and agrees that it will comply with all applicable federal, state and local law in the performance of the Agreement.
- HIPAA. As part of the Service, HME may perform or assist in performing a function or activity on Client’s behalf that involves the use and disclosure of Protected Health Information (as defined in 45 C.F.R. 164.501; hereinafter, “PHI”). The parties hereto shall use or disclose such PHI as required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (the “Security Rule”) promulgated thereunder, and the Health Information Technology for Economic and Clinical Health Act (Division A, Title XIII and Division B, Title IV, of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) (the “HITECH Act”). Capitalized terms used but not otherwise defined in this Section 2 shall have the same meaning given to such terms in HIPAA, the HITECH Act, or any implementing regulations promulgated thereunder, including but not limited to the Privacy Rule and the Security Rule.
- CCPA. This Section applies solely to the extent that (1) HME’s provision of the Service is not exempt from the California Consumer Privacy Act of 2018 (“CCPA”) under California Civil Code sections 1798.145(c)(1)(A) and (c)(1)(B) pertaining to medical information, PHI, providers of health care, and covered entities; (2) you are a “business” within the meaning of the CCPA; and (3) HME is processing the personal information of California residents. HME is a “service provider” (as such term is defined under the CCPA) under this Agreement. HME will not retain, use, disclose or otherwise process Customer Personal Information for any purpose other than for performing the Service, or as otherwise permitted by the CCPA. HME will not “sell” (as defined in the CCPA) any Customer Personal Information. HME may create and derive from its provision of the Service anonymized and/or aggregated data that does not identify you or any consumer, and use, publicize or share with third parties such data to improve HME products and services and for HME other lawful business purposes. Notwithstanding anything in the Agreement or any Order Form entered in connection therewith, you and HME acknowledge and agree that HME’s access to Customer Personal Information is not part of the consideration exchanged by the parties in respect of the Agreement. HME certifies that it understands its obligations under this paragraph and shall comply with them.
You are solely responsible for (1) identifying whether the CCPA applies to you; (2) providing any notices of your privacy practices that may be required by CCPA; and (3) identifying and responding to consumer requests to exercise CCPA rights to access, delete, or opt out of the sale of personal information (collectively, “CCPA Requests”), including for verifying the identity of consumers submitting CCPA Requests and for evaluating the scope and legality of CCPA Requests. HME will provide reasonable assistance to you in responding to such CCPA Requests, which may include assistance by way of providing self-service functionality. HME will treat any CCPA Requests that you submit to HME as presumptively valid under the CCPA.
With respect to CCPA Requests for which you require HME to provide assistance, you shall: (a) notify HME within 10 days of your receipt of the CCPA Request by emailing [email protected]; and (b) provide HME with the consumer’s email address or such other information that would permit HME to honor the request. You shall be solely responsible and liable for responding to the individual’s CCPA Request, including without limitation the content and timing of the response, in compliance with the CCPA. In addition:
In response to a CCPA Request for access to Customer Personal Information that you submit to HME, within 10 business days of HME’s receipt of such request from you, HME will provide you with a file that contains the Customer Personal Information that HME maintains about the individual via a secure method of transfer. HME reserves the right to withhold from such file any Customer Personal Information that the CCPA does not require to be provided in response to a CCPA Request. In response to a CCPA Request for the deletion of Customer Personal Information that you submit to HME, except as otherwise required by applicable law or permitted by the CCPA, within 10 business days of HME’s receipt of such request from you, HME will delete the Customer Personal Information, to the extent HME maintains such Customer Personal Information about the individual. You agree that HME may delete such Customer Personal Information by anonymizing and/or aggregating the information such that the information does not identify, and is not reasonably capable of identifying, the individual. You agree that you will not direct or otherwise cause HME to share any Customer Personal Information with any third party in a manner that may constitute a “sale” as such term is defined in the CCPA. For purposes of this Section, “Customer Personal Information” means any “personal information” (as defined in the CCPA) contained within the data that HME “processes” (as defined in the CCPA) in connection with performing the Service under the Agreement.
- TCPA This Section 2.iv concerns compliance with the Telephone Consumer Protection Act of 1991, located at 47 U.S.C. §§ 227 et seq., including the implementing regulations therefor located at 47 C.F.R. 64.1200 et seq. (“TCPA”) and the Telemarketing Sales Rule authorized by the Telemarketing and Consumer Fraud and Abuse Prevention Act, located at 15 U.S.C. §§ 6101-6108 (“TSR”) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, located at 15 U.S.C §§ 7701-7713 (“CAN SPAM Act”). As between you and HME, you agree that you will comply and be solely responsible for complying with all laws governing any messages sent or received in connection with your access and use the Service, including the TCPA, TSR, and CAN SPAM Act. Specifically, you agree to be responsible for, without limitation, obtaining any legally required consent(s) from any and all third parties (including your patients or customers) to send and receive any text message and/or emails using the Service and honoring any requests revoking such consent or otherwise “opting-out” of receiving any such messages and/or emails. You agree to be liable for, and to indemnify, defend and hold harmless HME from and against any and all damages, liabilities, judgments, fees, fines, costs and expenses (including reasonable attorneys’ fees) incurred by HME arising from any claims, demands or legal actions made against HME resulting from your failure to comply with this Section 2.iv.
- Content. Client may provide content to HME for use in HME’s provision of the Service, including but not limited to photos, images, data, text, and other types of works (“Content”). Client retains copyright and any other proprietary rights that Client may hold in the Content that Client provides to HME. By providing Content, Client hereby grants HME a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Client’s Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Client is solely responsible for any Content that Client provides, and for the consequences of posting or publishing such Content. By providing Content, Client affirms, represents, and warrants that: Client is the creator and owner of, or has the necessary licenses, rights, consents, and permissions, to use and to authorize HME to use and distribute Client’s Content as necessary to exercise the licenses granted by Client in this Section 3 and in the manner contemplated by HME, the Service, and these Terms; and Client’s Content, and the use of Client’s Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause HME to violate any law or regulation.
- Ownership. Client will retain exclusive ownership of all rights, title and interest in and to all Content which Client provides to HME for the provision of the Services, subject to the rights granted to HME herein. Upon termination or expiration of the Agreement, Client will own solely the domain name of the Provider Website; if the domain name was purchased and registered by HME, HME will take reasonable measures to assign the domain name to Client upon termination or expiration of this Agreement. Upon termination or expiration of this Agreement, if the domain name was purchased and registered by Client, Client will retain such ownership of the domain name. For clarity, all other elements of the Provider Website, apart from any Content provided by Client, will be owned solely by HME, and will not be retained by Client upon expiration or termination of this Agreement. HME will retain exclusive ownership of all rights, title and interest in the Practice Growth Platform (including, without limitation, any modifications, updates and developments provided hereunder), as well as any Content supplied by HME in the provision of the Service, and any visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and any other elements of the Service, subject to the licenses granted herein.
- Term and Termination:
- Term. This Agreement will continue for the period indicated on the applicable Order Form (the “Initial Term”).
- Auto-Renewal. Provided that Client has paid all fees due under this Agreement, this Agreement will automatically renew for successive one (1) year periods (“Renewal Term(s)”) unless either party provides notice of non-renewal in accordance with subsection iii. below. The Initial Term and any subsequent Renewal Term(s) may be collectively referred to as the “Term”.
- Notice of Non-Renewal. To prevent renewal of a subscription, you or we must give written notice of non-renewal and this written notice must be received no more than ninety (90) days but no less than sixty (60) days in advance of the end of the subscription then in effect. If you decide not to renew, you must send the notice of non-renewal by email to [email protected] Any notice received with less than 60 days’ notice will result in auto-renewal of your subscription for an additional Renewal Term.
- No Early Termination; No Refunds. The subscription term in effect will end on the expiration date and you cannot cancel it before its expiration. We do not provide refunds if you decide to stop using the subscription during your subscription term.
- Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any portion or all of the Service ten (10) days after such notice. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If your Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Service.
- Termination for Cause. Either party will have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of Client’s failure to pay fees, which must be cured within ten (10) days after receipt of written notice from HME. Pursuant to the payment policies outlined in Section 5 (Fees), you understand and agree that you will not be entitled to any refunds of amounts already paid to HME unless you properly terminate the Agreement for cause per the terms of this Section.
- Effect of Termination. Upon the expiration or termination of this Agreement, Client’s rights to access and use the Service will terminate, provided that: (i) any and all payment obligations of Client under this Agreement outstanding as of the effective date of expiration or termination will survive; (ii) HME shall return or destroy all PHI received from you, or created or received by us on your behalf (including any PHI in the possession of HME’s subcontractors or agents), and otherwise comply with the termination provisions of the Business Associate Agreement; (iii) where returning or destroying the PHI is infeasible, HME will provide notification to you of the conditions that make return or destruction infeasible, and upon mutual written agreement regarding such infeasibility, the protections of this Agreement and the Business Associate Agreement will continue to apply to such PHI to limit further uses and disclosures of such PHI for so long as the PHI must be maintained; and (iv) the following provisions will survive: Sections 2, 3, 4, 5, 6 vii., and 8-14.
- HME Indemnity. HME will indemnify, defend and hold Client harmless from and against: (a) any third party claim brought against Client alleging that the Practice Growth Platform or any HME-provided Content infringes any third party intellectual property or proprietary right, including without limitation, patent, copyright or trademark; and (b) any liability, claim, action, loss, cost, damage or expense (including reasonable fees of attorneys and experts) incurred or suffered by Client, to the extent that such liability, claim, action, loss, cost, damage, expense or fees are attributable to or incurred as a result of an unauthorized use or disclosure of PHI by HME or HME’s breach of this Agreement; provided that (i) Client promptly notifies HME in writing of such claim, (ii) provides assistance as reasonably requested by HME to defend or settle such claim and (iii) gives HME the exclusive authority to defend or settle such claim. HME will not enter into any settlement that requires Client to admit liability or pay money without Client’s prior written approval, which will not be unreasonably withheld or delayed. HME will have no liability or obligation under this Section 10 i. for any Content provided by Client.
- Client Indemnity. Client will indemnify, defend and hold HME and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “HME Indemnitees”) harmless from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this Agreement or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including but not limited to any dispute arising from the sale, license, supply or provision of your goods or services. Client specifically agrees to indemnify the HME Indemnitees as it relates to any claims against them related to the accessibility of the Provider Website to persons with disabilities, specifically those who are visually or hearing impaired. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
- Limitation of Liability. HME WILL NOT BE LIABLE TO THE CLIENT FOR ANY LOST PROFITS, COST OF COVER, LOSS OF DATA, INTERRUPTION OF BUSINESS OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF CLIENT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND (II) HME’S TOTAL LIABILITY UNDER OR ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID TO HME BY CLIENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
- Generally Except as provided below, any and all disputes, controversies, or claims arising out of or relating to the Service, this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Sarasota County, Florida. The arbitrator shall apply the laws of the State of Florida to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded as provided by the arbitrator.
- Exceptions. Despite the provisions of this Section, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through an applicable federal, state, or local agency if that action is available; (c) seek emergency injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
- No Class Actions. Each party may bring claims against the other only in its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and HME agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the State or Federal Courts located in Sarasota County, Florida. All other claims shall be arbitrated in accordance with this Section.