Terms and Conditions
This Master Services Agreement (this “MSA”) governs the use by a Customer of the Services provided by Retriever Medical/Dental Payments, LLC d/b/a Rectangle Health, with its principal place of business at:
115 East Stevens Avenue, Suite 300
Valhalla, NY 10595 USA (“Rectangle Health”).
Capitalized terms have the definitions set forth in this MSA. Rectangle Health and Customer may each individually be referred to in this MSA as “Party” or jointly as “Parties.”
WHEREAS Rectangle Health is the provider of practice management, patient payment, hosted software offerings and other services and the Customer wishes to obtain access to the same under the terms of this MSA; and
WHEREAS the Parties desire that this MSA serve as a master agreement between them for the purposes of any attached Order (as defined below) and subsequent Orders that Customer may place with Rectangle Health or a Partner, from time to time.
NOW, THEREFORE, in consideration of the foregoing recitals and mutual promises and covenants hereinafter set forth, the Parties agree to the terms hereof and cause this MSA to be executed and effective as of the date of last signature below (the “Effective Date”).
The Customer will accept this MSA by executing an Order that references this MSA. If the individual accepting this MSA is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to the terms and conditions of this MSA, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this MSA does not have such authority or does not agree with the terms and conditions of this MSA, such individual must not accept this MSA and may not use the Services.
Solutions Terms of Service
Compliance and Cyber Security Solutions
These Terms of Service (the Terms of Service) set forth the terms of service between you (Practice) whether an individual or entity, and Data Momma, LLC dba PCIHIPAA (PROVIDER), with its principal place of business at 2601 Ocean Park Boulevard Suite 303, Santa Monica, California 90405. These Terms of Service include the terms and conditions set forth below and the terms and conditions set forth in the Authorization and Set Up Form (the Authorization) delivered to Practice, and any policies, guidelines, and amendments that may be incorporated by reference into these Terms of Service from time to time (collectively with these Terms of Service and the Authorization, the Agreement). By executing and delivering the Authorization to PROVIDER, or by otherwise accessing or using any Services or PROVIDERs website, Practice agrees that the Agreement governs the Services (as defined below).
PROVIDER provides the following services that are included in its Compliance Package: (a) Payment Card Industry Data Security Standard (PCI DSS) compliance, and administrative services; (b) data breach protection insurance; (c) Health Insurance Portability and Accountability Act (HIPAA) compliance and administrative services, and breach protection services; (d) Data Backup Services; (e) E-mail Encryption Services; (f) Occupational Safety and Health Act (OSHA) compliance and administrative services, and (g) Other Related Services (clauses (a)-(g) collectively defined as Services). By its execution and delivery of the Authorization to PROVIDER, or by Practice otherwise accessing or using any Services or PROVIDERs website, Practice appoints PROVIDER as the exclusive provider of the Services to Practice. If Practices usage of the Services or data storage requirements exceeds the maximum allowable under the Authorization, the Services shall be increased to the next level of service and Practice agrees to pay PROVIDER’s then-current Fees (as defined below) for such additional Services.
Practice agrees to pay for those Services identified or selected on the Authorization, as the same may be amended, supplemented or changed from time to time in PROVIDER’s sole discretion and without prior notice to Practice (the Fees), including but not limited to changes or adjustments to reflect increased costs incurred by PROVIDER in providing the Services or price changes by Third Party Vendors. Except as set forth in the Authorization, the Fees are due monthly based upon the then-current pricing schedule. Fees are non-refundable once paid. Practice is obligated to pay all taxes and other charges imposed by any government authority on the Services provided under the Agreement. Practice may be charged the market rate per gigabyte (GB) used in excess of the amount of GB provided in Practices particular Compliance Package.
Early Termination-Related Fees
(a) If Practice cancels the Services prior to the end of any Term (as defined herein), the monthly Fees already paid by Practice shall be non-refundable and any remaining fees will be billable as an early termination fee. Practice agrees that any such early termination fee is reasonable.
(b) If Practice participates in the PROVIDER’s Merchant Card Processing Account (as described below) and the Practice terminates the Agreement at any time before the end of the Initial Term, Practice will pay a termination fee of $299.00 in addition to the fee identified in 5(a) above. [To the extent that this termination fee exceeds the maximum termination fee permitted at law, then the termination fee assessed will be the maximum fee permitted by such law.] In addition, if Practice has accepted point of sale terminal equipment for use without any obligation to pay a purchase price or monthly lease amount, then Practice agrees to return such equipment in good working order within 30 days of the expiration or termination of the Merchant Card Processing Agreement. If such equipment is not returned as required, then Practice will pay a separate non-return fee of $299.00.
PCI DSS Compliance Administrative Services
If Practice engages PROVIDER’s PCI DSS compliance administration services as part of the Services, then PROVIDER shall provide Practice Cyber Breach Liability Insurance as described in Section 7. PROVIDER shall charge and Practice shall pay an additional fee in the amount of seventy-five dollars ($75.00) for remediation on PCI DSS compliance in the event of failure.
Data Breach Coverage
(a) Cyber Breach Liability Insurance is offered by a third-party provider. There is a $2,500 per incident deductible and certain policy conditions, limitations, exceptions, waiting periods and restrictions apply. The Cyber Breach Liability Program includes $250,000 in Cyber Breach Insurance. Covered Entities and Business Associates that purchase OfficeSafe 360 or OfficeSafe HIPAA may Opt-Out of the Cyber Breach Liability Insurance. Upon purchase, the cost of the Cyber Breach Liability Insurance will be itemized and billed accordingly.
(b) The terms and provisions of any data breach insurance certificate and/or policy issued to Practice shall supersede any contrary terms set forth in the Agreement,
(c) The terms of the Cyber Breach insurance policy may differ depending on the domicile of Practice.
(d) Certain Practice Requirements to Receive Cyber Breach Liability Insurance
To receive service or support under the Plan, you must maintain:
- An active firewall configured at the network perimeter;
- Anti-virus scanning software on ALL network workstations;
- Network data back-ups stored offsite and updated at least once per week; and
- Multi-Factor Authentication for all remote access to owned networks or systems.
HIPAA Compliance Administrative Services
Practice may be entitled of up to a thirty (30) day free-trial period of PROVIDER’s Office Safe™ Practice Portal (OSPP), which will include a downloaded service from PROVIDER for HIPAA assessment, documents and various other related services. Practice will be billed PROVIDER’S regular charges for OSPP Services following the applicable trial period as defined in Fees above.
Practice may cancel the OSPP Services prior to the end of the applicable trial period by contacting our customer service by email at firstname.lastname@example.org, or by phone at (800) 588-0254.
If Practice cancels the OSPP Services during the applicable trial period, Practice will no longer have access to all data and organization of all data made accessible as part of the OSPP Services
PROVIDER reserves the right, in its sole discretion, to deny or cancel the OSPP Services trial, as well as to change the features available during such trial, at any time, for any reason or for no reason, without notice, and with no liability.
OSHA Compliance Administrative Services
Practice may be entitled of up to 60 day free-trial period of PROVIDER’s OSHA Product, OfficeSafe OSHA, which will include a downloaded service from PROVIDER for OSHA compliance requirements, employee training, documents, safety data sheets, and various other related services. In addition, if Practice is (1) audited by OSHA and (2) fined by OSHA in connection with services provided by Provider, Provider shall reimburse Practice for the amount of any fine imposed by OSHA directly related to services provided Practice by Provider in an amount not to exceed $25,000 (“OSHA Reimbursement”). Such OSHA Reimbursement shall not cover any other expenses associated with an OSHA audit or related fine, including without limitation administrative, overhead or legal fees associated therewith. Provided Practice complies with all requirements, including those referenced below, Provider will initiate the reimbursement payments within 48 hours of receiving the confirmation of audit violation and fine. Practice will be billed PROVIDER’S regular charges for OfficeSafe OSHA Services following the applicable trial period as defined in Fees above.
Requirements of Practice to Receive OSHA Reimbursement
To receive service or support under the Plan, you agree to provide (i) your Plan Agreement Number and a copy of your Plan’s original proof of purchase, (ii) a signed agreement with PCIHIPAA, (iii) Bloodborne Pathogens, Hazard Control Plans and Hazard Chemical Ebinder completed, and (iv) documentation that employees have logged into OS and taken their required training.
Limitations on OSHA Reimbursement
Company may restrict the reimbursement payments to the country where the Covered Plan was originally purchased. Company will not provide reimbursement payments in the following circumstances:
(a) there is not a signed PCIHIPAA agreement between Subscriber and the end customer;
(b) if the Bloodborne Pathogens, Hazard Control Plans, and Hazard Chemical E-binder modules have not been certified as completed;
(c) if the reported event is caused by an employee or employees who have not logged into OS and have not taken their required trainings;
Practice may cancel OfficeSafe OSHA prior to the end of the applicable trial period by contacting our customer service by email at email@example.com, or by phone at (800) 588-0254.
If Practice cancels OfficeSafe OSHA at any time, including during the applicable trial period, Practice will no longer have access to all data and organization of all data made accessible as part of OfficeSafe OSHA or created with OfficeSafe OSHA and will not be entitled to recover the OSHA Reimbursement.
Practice may only use the OfficeSafe OSHA trial offer once. PROVIDER reserves the right, in its sole discretion, to deny or cancel the OfficeSafe OSHA trial, as well as to change the features available during such trial, at any time, for any reason or for no reason, without notice, and with no liability.
(a) Payment Card Industry Rules.
Practice is responsible for complying with the rules, regulations and terms and conditions between Practice and Visa, MasterCard, Discover, American Express and all other card networks and associations (and related members and third-party providers) as they may apply and as are modified from time to time (the Rules).
(b) PCI DSS Compliance and PCI Data Breach Coverage.
Practice shall comply with the rules, regulations, standards and guidelines set forth by Payment Card Industry Security Standards Council (PCI SSC) and any governing committees or boards thereof, as may be amended from time to time (the PCI DSS Rules). Practice shall comply with any materials, information and instructions that it receives from PROVIDER or Third-Party Vendors regarding the PCI DSS Rules relating to software updates, data back-up account obligations, anti-virus obligations, data breach notification timing, firewalls, and other obligations and requirement necessary to comply with the PCI DSS Rules and PCI data breach coverage. Practice is solely responsible for timely reading and complying with such materials, information and instructions. Practice acknowledges and agrees that the materials, information and instructions from PROVIDER and/or Third-Party Vendors may require Practice to implement new or modify old procedures to comply with the PCI DSS Rules and data breach coverage requirements, which Practice agrees to implement in accordance with this Section.
Practice is responsible for the functionality of its network environment and the integration and compatibility of the Services with its network environment. Such network environment includes, but is not limited to, any POS systems, software, hardware, credit card data, network security, firewall, and encryption used by Practice in its business. Practice is responsible for remedying inadequacies, failures, weaknesses, incompatibilities, or non-complying aspects in or of Practices network environment revealed by any quarterly PCI DSS scans, annual Self-Assessment Questionnaires (SAQs), or as otherwise noted to Practice by PROVIDER and/or Third-Party Vendor.
(d) Information Requests
PROVIDER and/or Third-Party Vendors may from time to time provide to Practice certain forms or questionnaires to solicit or otherwise request certain information from Practice to facilitate the provision of the Services hereunder (the Requested Information). Such Requested Information may include, but is not limited to: (i) SAQs, SAQ data entry forms, or SAQ submission forms; (ii) questionnaires, forms or requests for information relating to PCI DSS vulnerability scans or quarterly PCI DSS scan requirements; (iii) questionnaires, forms or requests for information from Visa, MasterCard, American Express, Discover or other card networks or associations, or any information relating the provision of services by such parties; (iv) questionnaires, forms or requests for information from Third Party Vendors or any information relating the provision of services by Third Party Vendors, including the insurer providing data breach coverage; (v) questionnaires, forms or requests for information from the PCI SSC; (vi) questionnaires, forms or requests for information relating to any PCI DSS data breaches; and (vii) questionnaires, forms or requests for information relating to fines or penalties incurred by Practice. Practice shall provide the Requested Information in a timely manner to the requesting party, and it shall be true, complete and accurate in all respects. If any of the Requested Information provided to PROVIDER and/or any Third-Party Vendor is or was untrue, incomplete or inaccurate at the time it was made, Practice shall inform PROVIDER and/or Third-Party Vendor of the discrepancy within five (5) days following Practices discovery of the same, and immediately provide the requesting party true, complete and accurate modifications to correct the Requested Information previously provided by Practice. If the Requested Information is pre-populated or prepared by PROVIDER and/or any Third-Party Vendor, Practice is responsible for verifying the veracity, completeness and accuracy of such Requested Information and promptly (but in no event later than five (5) days) informing PROVIDER of any untrue, incomplete or inaccurate statements prepared by PROVIDER and/or any Third-Party Vendor.
(e) Software Use
From time to time PROVIDER may grant Practice a limited, non-exclusive, non-transferrable, non-sublicensable and revocable license to install and integrate certain software (the Designated Software) into Practices office management and/or business systems, solely for the purpose of enabling Practice to access and utilize the Services. Practice acknowledges that (i) PROVIDER and its licensors have all right, title and interest in and to the Designated Software, including but not limited to all intellectual property rights associated with the Designated Software; (ii) the Designated Software is protected by the copyright laws of the United States, international treaties and conventions, and other laws; and (iii) except with respect to the limited license granted herein, Practice has no intellectual property rights in the Designated Software (including but not limited to use of any trademarks, trade names, service marks, logos, domain names, or other distinctive brand features), and PROVIDER reserves all rights not expressly granted to Practice under this Section 9(e). PROVIDER reserves the right at any time to update or modify, or to discontinue, temporarily or permanently, Practices (or any of its customers or patients) access to and/or use of the Designated Software, or any feature or part thereof. PROVIDER may also adopt additional restrictions regarding the use of the Designated Software, or any feature or part thereof. PROVIDER may take such actions with or without notice.
(f) Applicable Laws
Practice is solely responsible for complying with all applicable international, national, state, regional and local laws and regulations applicable to Practice.
(g) Notifications Regarding Changes in Practices Business or Application Information.
Practice must provide PROVIDER with immediate and prior written notice of Practices intent to: (i) transfer or sell any substantial part of its total assets, or liquidate; (ii) change the basic nature of its business, including selling any products or services not related to its current business; (iii) change ownership or transfer control of its business; (iv) enter into any joint venture, partnership or similar business arrangement whereby any person or entity not a party to the Agreement assumes any interest in Practices business; (v) change its address or principal place of business; (vi) voluntarily file for bankruptcy, declare insolvency, appoint a receiver, or make an assignment for the benefit of creditors.
(h) Conduct and Obligations
In connection with the Services and the use of PROVIDER’s website, Practice agrees that it will not: (i) upload, post or otherwise transmit through or to PROVIDER’s website any content that (a) is unlawful, abusive, threatening, harmful, obscene, lewd, offensive, defamatory or otherwise objectionable, (b) might infringe the intellectual property rights, privacy rights, rights of publicity, or other proprietary rights of others, (c) contains any viruses, trojan horses, time bombs, or any other harmful programs or elements; (ii) disrupt, place unreasonable burdens or excessive loads on, interfere with or attempt to gain unauthorized access to any portion of PROVIDERs website, its computer systems, servers or networks; (iii) provide false information about Practice to PROVIDER or any Third Party Vendor; (iv) impersonate any other person, or otherwise attempt to mislead others about Practices identity or the origin of any content, message or other communication; (v) transmit junk mail, chain letters, or other unsolicited bulk e-mail or duplicative messages; (vi) collect information about other visitors to PROVIDER’s website without PROVIDER’s consent or otherwise systematically extract data or data fields, including without limitation any financial data or e-mail addresses; (vii) sell access to or the use of PROVIDER’s website, including any content contained on, downloaded or accessed from such website; (viii) redistribute any content, including financial, legal or other data, provided by PROVIDER or any Third Party Vendor in any manner whatsoever, including by means of printed publication, fax broadcast, Web pages, e-mail, Web newsgroups or forums, or any other electronic or paper-based service or method; or (ix) intentionally alter the format in which financial, legal or other data is provided by PROVIDER or any Third Party Provider, or otherwise circumvent PROVIDER’s or any Third Party Vendors’ regular interfaces to such data.
(i) Merchant Card Processing Account
Practice may establish a merchant card processing account. Practice agrees and acknowledges that such account will require Practice to enter into a separate agreement with a card-processing provider. Practice agrees to abide by all of the terms of such agreement. Practice authorizes PROVIDER to refer card processing providers to Practice for the purpose of Practice obtaining a new or replacement merchant card processing account.
(j) Compliance with PROVIDER directions and recommendations
If Practice transmits, receives or maintains Protected Health Information as defined HIPAA or other personally identifiable information, Practice agrees to comply with all of the directions and recommendations of PROVIDER in order to protect and safeguard against disclosure of such information in accordance with applicable law. Practice will implement and maintain all safeguards recommended by PROVIDER to protect the confidentiality, integrity and availability of all Protected Health Information, personally identifiable information and any and all other confidential information.
Representations, Warranties and Covenants
PROVIDER represents and warrants to Practice that it shall use reasonable care in the selection of the Third-Party Vendors to provide all or any portion of the Services subscribed for hereunder. If PROVIDER directly provides the Services hereunder, PROVIDER shall use reasonable efforts to ensure that the Services do not contain any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information of Practice. PROVIDER shall use reasonable efforts to provide the Services and maintain them in an uninterrupted and error-free fashion consistent with its practices in effect as of the date of these Terms of Service set forth above; provided, however, that Practice acknowledges that Services are a computer network-based service which may be subject to outages, data loss and delay occurrences. In such an event, PROVIDER shall use reasonable efforts diligently and promptly to remedy any and all material interruptions. Nonetheless, PROVIDER will not be liable in any manner for any data losses, interruptions, outages, or other delay occurrences relating to the Services provided by PROVIDER or its Third-Party Vendors.
Practice represents and warrants to PROVIDER that it has all the necessary legal authority to enter into, and to perform its obligations under, the Agreement. Practice is in compliance with all international, national, state, regional and local laws and regulations applicable to Practice. Practice further represents, warrants and covenants to PROVIDER that it shall only use the Services for lawful purposes and will not use the Services in a manner that would constitute a civil or criminal offense.
The Agreement shall not be construed as a partnership or joint venture, and PROVIDER shall not be liable for any obligation incurred by Practice. The relationship between PROVIDER and Practice is that of independent contractors. Neither Practice nor Practices employees, consultants, contractors or agents are agents, employees, partners or joint venturers of PROVIDER, nor do they have any authority to bind PROVIDER by contract or otherwise to any obligation.
Term and Termination
Account Access Password
(a) If Practice receives a user identification name or password from PROVIDER to access PROVIDERs database or use services offered by PROVIDER, Practice will: (i) keep the user identification name and password confidential; (ii) not allow any other entity or person to use the user identification name or password or gain access to PROVIDERs database or services; (iii) be liable for all action taken by any user of the user identification name or password; and (iv) promptly notify PROVIDER if Practice believes the user identification name or password have been used inappropriately or the confidentiality of the information made available through such use has been compromised.
(b) Practice agrees that any loss incurred by PROVIDER as a result of any party gaining access to Practices account or PROVIDERs website using information which that party was not authorized to obtain or using such information in a manner not permitted by the Agreement (including but not limited to improper or unauthorized use of Practices ID number and PIN) shall be the responsibility of Practice.
Disclaimer of Warranties and Limitation of Liability
(a) EXCEPT AS PROVIDED IN SECTION 10 (A) OF THESE TERMS OF SERVICE, THE SERVICES ARE PROVIDED ON AN AS IS BASIS WITHOUT ANY WARRANTY WHATSOEVER. PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, TO PRACTICE AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. PROVIDER FURTHER DISCLAIMS ANY WARRANTY INSURING THAT THE SERVICES WILL (I) BE SECURE, UNINTERRUPTED, TIMELY, OR FREE FROM DEFECTS, ERRORS, OMISSIONS, INTERRUPTIONS, DELAYS OR OTHER LOSSES, (II) BE COMPATIBLE OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE SYSTEMS, OR DATA OF PRACTICE, AND (III) FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PROVIDERS OBLIGATIONS.
(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, PROVIDER DISCLAIMS ANY AND ALL LIABILITY ARISING FROM ACTIONS OR OMISSIONS OF THIRD-PARTY VENDORS PROVIDING ALL OR ANY PART OF THE SERVICES SUBSCRIBED FOR HEREUNDER.
(c) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO THOSE PROVIDED BY THIRD PARTY VENDORS, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL PROVIDERS TOTAL LIABILITY TO PRACTICE OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED ONE THOUSAND ($1,000.00) DOLLARS, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.
(d) WITHOUT LIMITING THE FOREGOING, PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTY (I) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, (II) THAT ALL NON-COMPLIANT INFORMATION WILL BE FOUND, AND (III) REGARDING CORRECTNESS, ACCURACY OR RELIABILITY. ALL INFORMATION ASSESSED IS ONLY AS ACCURATE AS THE INFORMATION PRACTICE PROVIDES TO PROVIDER.
Practice agrees to indemnify, defend, and hold harmless PROVIDER, its employees, officers, directors, managers, members, shareholders, referral partners and agents from and against any loss, liability, damage, penalty or expense (including attorney’s fees, expert witness fees and cost of defense) that each may suffer or incur as a result of claims arising from: (i) any breach by Practice or any officer, director, manager, member, shareholder, employee, subcontractor, agent or affiliate of Practice of the terms of the Agreement, including, without limitation, Practices failure to comply with its obligations set forth in the Agreement, (ii) any representation or warranty made by Practice being false or misleading, (iii) the Requested Information, (iv) any representation or warranty made by Practice or any employee or agent of Practice to any third person other than as specifically authorized by the Agreement, (v) any negligent act or omission of Practice or its officers, directors, managers, members, shareholders, employees, subcontractors, agents or affiliates, (vi) any alleged or actual violations by Practice or its officers, directors, managers, members, shareholders, employees, subcontractors, agents or affiliates of any laws, regulations or the Rules, or (vii) any claims made by any customers or patients of Practice, or any third party vendors of Practice.
(a) Successors and Assigns
The Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Practice may not assign its rights or obligations set forth in the Agreement without the written consent of PROVIDER, which consent shall be in PROVIDERs sole discretion. PROVIDER may assign its rights and/or obligations the Agreement in its sole discretion without the written consent of Practice.
(b) Entire Agreement
The Agreement sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party to the Agreement.
(c) Choice of Law; Forum
The parties agree that all performances and transactions under the Agreement will be deemed to have occurred in California and Practices entry into and performance of the Agreement will be deemed to be the transaction of business within the State of California. The Agreement will be governed by California law, without regard to its conflicts-of-law principles, and applicable federal law. Subject to Section 18 below: (i) the parties hereby knowingly, intelligently and voluntarily consent to the exclusive jurisdiction and venue for any action relating to the subject matter of the Agreement in either the applicable state court located in Los Angeles, California, or the United States District Court for the District of California ii) the parties consent to the jurisdiction of such courts and agree that process may be served in the manner allowed by the laws of the State of California or United States federal law: (iii) the parties hereby knowingly, voluntarily and intelligently waive any claim or defense in any such legal action, suit or proceeding commenced in any of the above-referenced courts asserting that it is not subject personally to the jurisdiction of such court, that service upon it as herein above set forth is invalid, that its property is immune or exempt from attachment or execution, that the legal action, suit or proceeding is brought in an inconvenient forum, that the venue of the legal action, suit or proceeding is improper or that the Agreement, or the subject matter hereof, may not be enforced in or by such court.
(d) No Waiver
The failure of either party to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of the Agreement, shall not be construed as a waiver of that conduct or any future breach or subsequent wrongful conduct.
If any part, term or provision of the Agreement is declared and determined by any court or arbitrator to be illegal or invalid, such declaration and determination shall not affect the validity of the remaining parts, terms or provisions thereof.
The various headings in the Agreement are inserted for convenience only and shall not affect the Agreement or any portion thereof.
(g) PRACTICE HEREBY AUTHORIZES PROVIDER TO SEND, AND PRACTICE CONSENTS TO THE RECEIPT OF, SMS TEXT ALERTS AND ARTIFICIAL OR PRERECORDED VOICE ALERTS FOR THE FOLLOWING DESIGNATED PURPOSES: (I) TO NOTIFY PRACTICE WHEN ITS AUTHORIZATION IS APPROVED OR ACTIVATED; (II) TO NOTIFY PRACTICE THAT PROVIDER NEEDS ADDITIONAL REQUIRED INFORMATION; (III) TO NOTIFY PRACTICE OF NEW PRODUCTS OR FEATURES OFFERED BY PROVIDER; (IV) TO NOTIFY PRACTICE THAT PROVIDER IS TRYING TO REACH IT; (V) TO NOTIFY PRACTICE OF CUSTOMER SERVICE ISSUES; (VI) TO NOTIFY PRACTICE OF SERVICE OUTAGES; (VII) TO PROVIDE PRACTICE WITH INFORMATION REGARDING ACCOUNT BALANCES, TRANSACTIONS, AND SIMILAR MATTERS; AND (VIII) TO NOTIFY PRACTICE OF ANY MATTERS RELATING TO ITS ACCOUNT. PRACTICE UNDERSTANDS THAT IT WILL RECEIVE FUTURE SMS TEXT ALERTS AND/OR ARTIFICIAL OR PRERECORDED VOICE ALERTS FOR THE AFOREMENTIONED PURPOSES BY OR ON BEHALF OF PROVIDER TO THE TELEPHONE NUMBER DESIGNATED IN THE AUTHORIZATION AND, HAVING RECEIVED AND REVIEWED THESE DISCLOSURES, PRACTICE UNAMBIGUOUSLY AUTHORIZES PROVIDER TO DELIVER, OR CAUSE TO BE DELIVERED, AND AGREES TO RECEIVE, SUCH ALERTS THROUGH THE USE OF AN AUTOMATIC TELEPHONE DIALING SYSTEM AND/OR AN ARTIFICIAL OR PRERECORDED VOICE. PRACTICE ACKNOWLEDGES THAT THE TELEPHONE NUMBER PROVIDED IS IN THE NAME OF AND CONTROLLED BY PRACTICE, THAT PRACTICES CONSENT IS VOLUNTARY AND NOT REQUIRED (DIRECTLY OR INDIRECTLY) AS A CONDITION TO ITS RECEIVING SERVICES FROM PROVIDER OR ITS AFFILIATED COMPANIES IN ACCORDANCE WITH THE AGREEMENT, AND THAT PRACTICE HAS THE RIGHT TO WITHDRAW THIS CONSENT AT ANY TIME BY PROVIDING PROVIDER WITH WRITTEN NOTICE OF SUCH WITHDRAWAL IN ACCORDANCE WITH SECTION 23 BELOW. THIS CONSENT IS BEING PROVIDED ELECTRONICALLY IN ACCORDANCE WITH SECTION 25 BELOW.
PROVIDER and Practice each acknowledge and agree that any controversy, disagreement, dispute or claim arising out of or relating to the Services or the Agreement, or any breach in connection therewith or herewith (each, a Dispute), will be settled by following the procedures set forth below:
(a) PROVIDER, on the one hand, and Practice, on the other hand, agree first to contact the other to advise of any such Dispute. The party alleging, asserting and/or initiating the Dispute shall contact the other party or parties who is or are alleged to be liable or responsible for such Dispute, and provide a written description of the Dispute, all relevant documents/information and the proposed resolution (the Claim Notice). Practice agrees to contact PROVIDER as contemplated above by calling or writing to: [PROVIDER, Claims Administrator, 2601 Ocean Park Boulevard Suite 303, Santa Monica, California 90405 Tel. No. 800-588-0254.
(b) Practice and the Claims Administrator for PROVIDER shall then seek in good faith to resolve the Dispute. As part of this process, each party to the Dispute shall provide a monetary amount that, if paid to the party alleging, asserting and/or initiating the Dispute, would settle the Dispute (the Settlement Amount). If the parties do not agree to a Settlement Amount, or the parties are otherwise unable to settle the Dispute within thirty (30) days of the date of delivery of the Claim Notice, then the parties shall proceed to arbitration, as set forth below.
(c) IN THE ABSENCE OF RESOLVING THE DISPUTE, AND INSTEAD OF SUING IN COURT, PROVIDER AND PRACTICE EACH AGREE TO SETTLE AND RESOLVE FULLY AND FINALLY ALL DISPUTES EXCLUSIVELY BY ARBITRATION, EXCEPT IN THE FOLLOWING LIMITED CIRCUMSTANCES: (I) PROVIDER OR PRACTICE MAY COMMENCE AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT WHERE THE AMOUNT OF THE DISPUTE DOES NOT EXCEED THE JURISDICTIONAL LIMIT OF SUCH COURT; AND (II) PRACTICE MAY FILE A DISPUTE WITH ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AGENCY THAT CAN, IF THE LAW SO AUTHORIZES, SEEK RELIEF AGAINST PROVIDER ON BEHALF OF PRACTICE. THE AGREEMENT TO HAVE DISPUTES RESOLVED BY ARBITRATION IS MADE WITH THE UNDERSTANDING THAT EACH PARTY IS IRREVOCABLY, KNOWINGLY AND INTELLIGENTLY WAIVING AND RELEASING ITS RIGHT TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE DISPUTES. Without limitation, PROVIDER and Practice agree that Disputes, as defined above, shall include the following matters: (a) any Dispute by any party against any agent, employee, successor, or assign of the other party or parties, including to the full extent permitted by applicable law, third parties who are not parties to the Agreement, whether related to the Services or otherwise; (b) any past, present, and future Dispute; and (c) any Dispute as to the scope, validity or applicability of this Dispute Resolution provision, and/or the arbitrability of any Dispute; and (d) any Dispute against PROVIDER, or any other party as stated above, related in any way to the Services, including, but not limited to, the characterization of the transactions referenced in the Agreement, privacy, solicitation, or advertising, even if it arises after the Services have terminated.
(d) The foregoing arbitration shall be administered by the American Arbitration Association (the AAA) in accordance with its Commercial Arbitration Rules in effect when a Claim Notice is duly provided. If any AAA procedure or rule conflicts with the terms of the Agreement, the Agreement will apply.
(e) The arbitration shall be governed by the Federal Arbitration Act (the FAA), 9 U.S.C. Sections 1-16. Any award by the arbitrator may be entered as a judgment in any court having jurisdiction. Any arbitrator’s decision and award is final and binding, subject only to those exceptions under the FAA. PROVIDER and Practice agree the FAAs provisions, not state law, govern all questions of whether a Dispute is subject to arbitration.
(f) Unless PROVIDER and Practice agree otherwise, the foregoing arbitration will be conducted by a single neutral arbitrator selected by utilizing the process provided in the AAAs Commercial Arbitration Rules in effect when Claim Notice is duly filed. The arbitrator shall be a licensed attorney and/or retired judge. Except as otherwise provided below, the arbitration shall be conducted in the county where the principal address of the party against whom the Dispute is initially commenced is located and for any claim against PROVIDER, that address shall be PROVIDER, 2601 Ocean Park Boulevard Suite 303, Santa Monica, California 90405 . The arbitrator shall have no authority to award punitive, consequential or other monetary damages not measured by the prevailing party’s actual damages, except as may be required by statute or as otherwise provided below.
(g) The award of the arbitrator shall be accompanied by a reasoned opinion.
(h) For Disputes of $10,000.00 or less that are initiated by Practice (Small Disputes), the following rules shall apply notwithstanding anything to the contrary in the procedures or rules of the AAA:
(1) The arbitration shall be conducted in accordance with the AAAs Expedited Procedures.
(2) The arbitrator shall include a finding as to whether the initiation of such Dispute was frivolous. If it is determined by the arbitrator not to be frivolous, then PROVIDER shall pay the fees and costs assessed by the AAA in administering the arbitration.
(3) If the arbitrator finds that PROVIDER is liable to Practice for an amount greater than the Settlement Amount presented by PROVIDER prior to the commencement of arbitration (after all offsets and counterclaims are applied), then PROVIDER shall be required to pay in addition to any award of the arbitrator an amount equal to the greater of (x) $500.00, or (y) the amount of Practices reasonable attorney’s fees.
(4) Practice may choose to conduct the arbitration in the state of its principal address.
(i) PROVIDER AND PRACTICE EACH AGREE NOT TO PURSUE ARBITRATION ON A CLASS-WIDE BASIS. ARBITRATION WILL BE CONDUCTED SOLELY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Practice agrees not to disparage PROVIDER or its respective vendors, and promises to refrain from engaging, directly or indirectly, in any action, communication or conduct negligently, recklessly or intentionally undertaken to damage the name or reputation of PROVIDER.
Notwithstanding anything to the contrary in the Agreement, all sections of the Agreement that by their nature should survive termination or expiration will survive, including, without limitation, accrued rights to payment, indemnification obligations, warranty disclaimers, and limitations of liability.
Modifications to Agreement
PROVIDER may from time-to-time and at any time amend any provision of the Agreement for any reason in its sole discretion, including fees and charges payable by Practice, whether or not such amounts are set forth in the Authorization. PROVIDER will note the date of the amendment at the top of the Agreement, and, unless specified otherwise, the amendment shall become effective at the start of the first billing cycle after PROVIDER has provided notice to Practice of such amendment. Amendments due to changes in any regulatory or legal requirement will become effective at such time that PROVIDER may specify, which may be sooner than the beginning of the next billing cycle following the date of notice.
Except as expressly stated in the Agreement, all sales of Services are final, and all fees are non-refundable once paid.
Notices: Consent to Electronic Communications
By applying for the Services and confirming that it has read the Agreement, Practice is confirming to PROVIDER that it has the means to access the Internet through its own service provider and download or print electronic communications. Practice agrees to the receipt of electronic communications by email or by the posting of such information by PROVIDER at one or more of PROVIDERs sponsored websites, such as www.pcihipaa.com. Such communications may pertain to the services delivered by PROVIDER, the use of information Practice may submit to PROVIDER, changes in laws or Rules impacting the Services or other reasons, such as amendment of the Agreement. In addition, all notices and other communications required or permitted under the Agreement by PROVIDER to Practice may also be delivered by PROVIDER to Practice either by FAX, overnight carrier or first-class mail, postage or other charges prepaid, addressed and transmitted as set forth below. All notices and other communications required or permitted under the Agreement by Practice to PROVIDER shall be delivered by Practice to PROVIDER by overnight carrier or certified mail, postage or other charges prepaid, addressed and transmitted as set forth below. Notice by FAX or e-mail shall be deemed delivered when transmitted. Notice by mail or overnight carrier shall be deemed delivered on the first (1st) business day after mailing or delivery to the carrier. Following are the addresses for the purposes of notices and other communications hereunder, which may be changed by written notice in accordance with this section:
At any time or from time to time upon the request of PROVIDER, Practice will execute and deliver such further documents and do such other acts as PROVIDER may reasonably request in order to effectuate fully the purposes of the Agreement.
The practice may become a party to, and become bound by, the Agreement by completing the Authorization and accepting it electronically over the Internet. This is done by clicking or entering I Agree, by providing an electronic form of signature or otherwise by affirmatively indicating acceptance or consent where requested on an electronic version of the Authorization (any such method constituting an Electronic Consent). By providing such Electronic Consent, Practice acknowledges that it has received and reviewed all applicable pages, terms and conditions of the Agreement, and it represents, warrants, consents and agrees as follows:
(a) The electronic agreement process allows Practice to sign and agree to legally binding agreements online by providing its Electronic Consent;
(b) Practice intends to use the electronic agreement process to provide its Electronic Consent;
(c) Practices Electronic Consent is legally binding, and is governed by the Electronic Signatures in Global and National Commerce Act of 2000, and/or the Uniform Electronic Transactions Act governances (or an amended version thereof) in its state of residence, and Practice agrees to be bound by these governances;
(d) The individual providing Electronic Consent on behalf of Practice is authorized by Practice to do so and is at least 18 years old; and
(e) The Electronic Consent will be binding upon Practice, and will not be construed by a court of law to have any less effect than a standard ink or paper signature.
Patient Communication Solutions
Acceptance of Terms
These Terms of Service (the “Terms”) govern the individual, company and/or organizational (collectively, “you”, “your” or “Subscriber”) purchase and use of any of ReminderCall.com services, including your use of automated calls, Short Message Service (“SMS”), and emails (collectively, the “Services”) available through our website (https://www.ReminderCall.com, the “Site”), and the software, technical and communications platform(s) available on and through the Site (collectively, the “Platform”). The Platform and Services are made available by Reminder Services, LLC (“RSI”), d/b/a ReminderCall.com (“ReminderCall.com”, “ReminderCall, “we”, ”our”, or “us”).
RSI reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement, or delete any of the terms and conditions of these Terms of Service at any time, including without limitation access policies, the availability of any feature of the RSI Platform and Services, hours of availability, content, data, software or equipment needed to access RSI Platform and Services, effective with or without prior notice. Although we may attempt to notify you when material changes are made to these Terms of Service, you should periodically review the most up-to-date version here. IF YOU CANNOT COMPLY WITH CHANGES TO THESE TERMS OF SERVICE, OR SUCH CHANGES ARE UNACCEPTABLE TO YOU, YOU MUST TERMINATE, AND IMMEDIATELY STOP USING THE RSI Platform and Services. Your continued use of any aspect of the RSI Platform and Services following any revision to this Terms of Service constitutes your complete and irrevocable acceptance of any and all such changes.
Usage by Subscriber
The ReminderCall.com Platform allows the Subscriber to send calls, SMS, and emails to their user database. RSI hosts the Platform and Services on RSI servers. You acknowledge that RSI simply acts as a passive conduit for the distribution and transmission of your information and that RSI has no obligation to screen, preview, or monitor any Content.
Acceptable Use Policy
This Acceptable Use Policy describes actions that RSI prohibits when any party uses the Platform. The Platform and Services may not be used in any illegal, abusive, or another manner that interferes with the business or activities of any other party. The following list gives examples of prohibited activities. This list is provided by way of example and should not be considered exhaustive.
- Attempting to bypass or break any security mechanism on any of the Platform and Services or using the Platform and Services in any other manner that poses a security or service risk to ReminderCall.com or any of its users.
- Testing or reverse-engineering the Platform in order to find limitations, vulnerabilities, or evade filtering capabilities.
- Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on the Platform or any other conduct that adversely impacts the availability, reliability, or stability of the Platform or Services.
- Transmitting any material that contains viruses, trojan horses, worms, or any other malicious, harmful, or deleterious programs.
- Using the Platform and Services in any manner that violates any applicable industry standards, third-party policies, or requirements that ReminderCall.com may communicate to its users, including without limitation, all of the applicable guidelines published by the CTIA, the Mobile Marketing Association, or any other accepted industry associations, carrier guidelines or other industry standards.
- Engaging in any unsolicited advertising, marketing, collections, or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act. This includes using the ReminderCall.com Platform and Services without obtaining prior express consent where it is required.
- Using the ReminderCall.com Platform and Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited phone calls, text messages, or emails.
- Sending automated text messages or calls before 8 a.m. or after 9 p.m. local time.
- Using the ReminderCall.com Platform and Services to harvest or otherwise collect information about others, including email addresses or phone numbers.
- Using the ReminderCall.com Platform and Services to engage in fraudulent activity with respect to third parties.
- Violating or facilitating the violation of any local or foreign law, including laws regarding the transmission of data or software.
- Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.
- Transmitting any material that infringes the intellectual property rights or other rights of third parties.
- Transmitting any material that is libelous, defamatory, discriminatory, or otherwise malicious or harmful to any person or entity.
- Transmitting any false information with the intent either to mislead or to prank the recipient.
- Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
- Using the ReminderCall.com Platform to send content pertaining to industries subject to age-gating regulations: cannabis, medical marijuana, pharmaceuticals, tobacco, alcohol, online gaming, gambling, and online dating apps.
RSI maintains a no-tolerance policy toward spam. Although RSI does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Platform and Services.
Spam includes any type of unsolicited message. You agree that you will not use any third-party list of phone numbers or otherwise engage in unsolicited messaging in connection with the Platform. RSI will immediately terminate any account which it believes, in its sole discretion, is transmitting any spam or other unsolicited messaging, such as unsolicited advertising, marketing, bill collections or other activities that violate anti-spam laws and regulations including, but not limited to:
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., and related regulations, 47 C.F.R. Part 64.1200, et seq; Do-Not-Call Implementation Act; Telemarketing Sales Rule (“TSR”), 16 C.F.R. Part 310, et seq.; Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act of 2003; Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices Guidelines for Messaging; Cellular Telecommunications Industry Association (“CTIA”) Best Practices and Guidelines for Location-Based Services; CTIA Messaging Principles and Best Practices; CTIA SMS Interoperability Guidelines; and Canada’s Anti-Spam Legislation (CASL).
You represent and warrant that your use of the RSI Platform and Services will not cause RSI to violate these or other similar laws.
You agree that it is your responsibility to abide by any federal and state laws applicable to your use of RSI Platform and Services. You understand and agree that RSI will not be held responsible for damages to you or any third party incurred due to your failure to abide by state or federal laws.
If you are using RSI Services in Canada, you agree to comply with all Canadian telecommunications or privacy laws and rules including rules and orders issued by the Canadian Radio-television and Telecommunications Commission, any National Do Not Call Registry or Unsolicited Telecommunications Rules, the federal Personal Information Protection and Electronic Documents Act or any substantially similar provincial law which may be applicable.
Prior Express Consent (“Opt-In”)
Automated Text Messages
You can send most informational text messages to existing customers without a written opt-in. However, you may not send automated text messages that result in the sale of a product or service to anyone who is on the federal Do-Not-Call list. The federal Do-Not-Call list can be purchased electronically from www.telemarketing.donotcall.gov and must be checked every 31 days. You hereby represent and warrant that the owners of the phone numbers to which you transmit text messages that may result in the sale of a product or service using the Platform are not on the federal Do-Not-Call List.
An existing business relationship with a recipient DOES NOT, in itself, constitute permission to send automated calls to their cell phone. You hereby represent and warrant that the owners of the phone numbers to which you transmit outbound calls through the Platform have expressly consented or otherwise opted-in to the receipt of such messages, in accordance with the TCPA, and other applicable federal, state, and local laws. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of informational, commercial, and/or marketing messages. If the owners of the phone numbers to which you transmit outbound calls through the Platform have not expressly consented or otherwise opted-in to the receipt of such messages, you hereby agree to ask recipients to opt-in to receiving your automated calls or text messages by ONE of the following methods:
- Adding a checkbox and opt-in wording to a paper registration form.
- Adding a checkbox and opt-in wording to an online registration form.
- Asking for permission via email.
- Adding opt-in wording to an existing agreement that recipients routinely sign (contract, terms of service, SOW, etc).
Samples of opt-in wording can be found at: ReminderCall.com FAQs.
All emails sent from the Platform have an unsubscribing mechanism and do not require prior opt-in from United States recipients.
You hereby acknowledge that RSI merely provides a Platform (“ReminderCall.com”, or the “Platform”) for facilitating the sending of your calls, text messages, and emails. You hereby confirm that you are solely responsible for the content of your calls, text messages, and emails and that you have sole liability for your communications. You agree to represent truthfully your identity, the identity of your organization, and your product or service in your calls, text messages, and emails. You will obtain all consents, including but not limited to the delivery of informational, commercial, and marketing messages.
RSI does not guarantee the accuracy, integrity, quality, or appropriateness of any messages, communications, information, data, text, music, sound, or other materials (“Content”) through RSI Services. You acknowledge that RSI simply acts as a passive conduit for the distribution and transmission of your information and that RSI has no obligation to screen, preview, or monitor any Content.
By using RSI, you agree that it is solely YOUR RESPONSIBILITY to evaluate the accuracy, usefulness, completeness, or appropriateness of any Content that you send, receive, access, post, or otherwise transmit through RSI, including Content that may be offensive, indecent or objectionable.
Under no circumstances will RSI be liable in any way for any Content, including but not limited to, for any errors or omissions in any Content; loss, destruction or degradation of any Content; or for any loss or damage of any kind incurred as a result of the use of any Content stored, sent, accessed, posted or otherwise transmitted via RSI.
Each party shall comply in all material respects with all applicable governmental laws, rules, and regulations.
Neither party to this agreement will reveal confidential information to any third party or to any employees who do not have a “need-to-know” by virtue of their job function. Confidential information shall include, for example, and without limitation, the information entered by the Subscriber for this service, RSI technical, financial, and marketing information, including system use information provided to the Subscriber.
In this regard, RSI’s utilization of personal information is limited to that which is necessary to fulfill its mission of assisting physicians in their practice, while providing the minimum amount of identifiable client data required to perform the specified communication.
- RSI will not disclose, rent, or sell any personally identifiable client information to third parties (although RSI reserves the right to share non-personal, compiled or condensed client information which does not allow a client to be identified or contacted).
- RSI employs advanced multi-layered encryption and security firewalls to protect confidential information from unauthorized disclosure, misuse, loss, errors, or alteration. All information is received and sent under the physician’s direction and order via secured encrypted Internet transmission, directly from the healthcare provider’s office.
RSI HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. RSI’s SERVICES AND PROPERTIES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE, AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Subscriber acknowledges and understands that the service software is property of RSI whose rights are subject to copyrights, trade secrets, and other laws and that the use of service will give the Subscriber no rights in or to them. This means that the Subscriber also agrees that it will not reverse engineer the software, nor will it attempt to do so.
RSI, the RSI logo, and other ReminderCall.com logos, product and service names may be trademarks, service marks or other intellectual property of RSI (the “RSI Marks”). You agree not to display or use the RSI Marks in any manner without the prior, express written permission of RSI.
RSI reserves the right to make modifications, enhancements, customizations, improvements and/or changes to RSI’s system and services at any time without advance notice.
Voice Recording and Monitoring Consent
RSI is under no obligation to monitor or record its services for accuracy, completeness, or quality. You understand that recordings may or may not resemble that which you intend to record and that RSI is under no obligation to ensure that recordings will successfully represent that which you intend to record. You agree that all recordings or monitoring become part of the Content (hereinafter defined) of RSI.
Automated Messages Consent
By using ReminderCall.com, you are agreeing to receive automated informational and promotional communications via call, text messages, and emails.
Downtime and Service Suspensions
Subscriber acknowledges that Subscriber’s use of this service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the service for any reason, including as a result of power outages, system failures or other interruptions; and RSI shall also be entitled, without any liability to the subscriber, to suspend access to any portion or all of the service at any time, on a service-wide basis:
- For scheduled downtime to permit us to conduct maintenance or make modifications to service;
- In the event of a denial of service attack or other attack on the service or other event that RSI determines, in its sole discretion, may create a risk to the applicable service, to Subscriber or to any of our other customers if the service were not suspended; or
- In the event that RSI determines that service is prohibited by applicable law or RSI otherwise determines that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”).
RSI shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber may incur as a result of any Service Suspension. To the extent RSI is able, RSI will endeavor to provide Subscriber notice of any Service Suspension and to post updates regarding resumption of Platform and Services following any such suspension but shall have no liability for the manner in which RSI may do so or fail to do so.
Exclusion of Damages; Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL RSI BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF RSI HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL RSI BE LIABLE TO THE SUBSCRIBER FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY THE SUBSCRIBER DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
RSI SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER RSI NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND SUBSCRIBER WILL HOLD RSI HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE RSI SERVICES TO CONTACT EMERGENCY SERVICES.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS RSI FROM AND AGAINST ALL LOSSES, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES RESULTING FROM OR ARISING OUT OF ANY CONTENT YOU TRANSMIT THROUGH RSI SERVICES, YOUR USE OF RSI SERVICES, YOUR VIOLATION OF THE TERMS OF SERVICE OR AGREEMENT OR ANY HARM YOU MAY CAUSE TO ANYONE IN CONNECTION WITH SAME. YOU AGREE THAT RSI RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
By using the RSI Platform and Services, the Subscriber agrees that the laws of the State of California will govern this Agreement and any dispute of any sort that might arise between Subscriber and RSI. Subscriber also agrees to resolve disputes only by arbitration. There is no judge or jury in arbitration, but an arbitrator can award the same damages and relief and must honor the same terms in this agreement as a court would. Subscriber and RSI also agree that:
- The Federal Arbitration Act applies to this agreement. Any dispute that in any way relates to or arises out of this agreement or from any services received from RSI will be resolved by one or more neutral arbitrators before the American Arbitration Association (“AAA”).
- Unless Subscriber and RSI agree otherwise, the arbitration will take place in San Jose, California.
- This agreement does not allow class or collective arbitrations even if the AAA procedures or rules would. No class or representative or private attorney general theories of liability or prayers for relief may be maintained in any arbitration held under this agreement.
- If either Subscriber or RSI intends to seek arbitration under this agreement, the party seeking arbitration must first notify the other party of the dispute in writing at least thirty (30) days in advance of initiating the arbitration. Notice to RSI should be sent as required by this Agreement. The notice must describe the nature of the claim and the relief being sought. If Subscriber and RSI are unable to resolve the dispute within thirty (30) days, either party may then proceed to file a claim for arbitration.
- An arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself.
Authorization for Payment by Credit Card
Undersigned Subscriber hereby authorizes RSI to charge the submitted credit card number in payment for the RSI Services. The undersigned understands that the same terms and conditions normally governing the use of the credit card apply to this use as well. The undersigned authorizes RSI and its agents to perform credit card checks and other credit or financial information or references submitted to RSI, where permitted. The undersigned represents that he/she has authority to request services(s) for the Subscriber.
Subscriber will be responsible for any and all taxes, duties, and similar costs, imposed upon, due to, or arising from the service.
Payment is due upon receipt of invoice. Payment not received within thirty (30) days of the invoice date, shall be charged a late fee. Late payments will be equal to the lesser of 1.5% per month on any overdue amount or the maximum legal rate. Subscriber shall remain obligated to make all payments due or accrued under it prior to the date of termination.
All statements and invoices are generated on the first day of the month, or the first working day of the month if the first day falls on a weekend or holiday. All Invoices are due immediately and must be secured with payment methods such as a credit or debit card. If Subscriber chooses to be invoiced, the invoice will be delivered electronically and must be paid in no later than thirty (30) days from the date of the invoice, which may be earlier than the date of delivery. If the Subscriber wishes to have a paper copy of the invoice delivered a $4.50 invoicing fee applies in addition to any penalties or interest should the Subscriber be late in making a payment.
- By opening this account and using the ReminderCall.com service, the Subscriber gives RSI permission to charge their credit card on a monthly basis for the calls, text messages and emails that are sent from this account.
- The Free Trial includes usage of the ReminderCall.com service for 30 days UP TO 1,000 REMINDER CREDITS. Usage exceeding 1,000 REMINDER CREDITS will be billed at the rates displayed at www.remindercall.com/pricing-2. Trial does not include non appointment-reminder announcements which will be billed at the rates displayed at www.remindercall.com/pricing-2.
- Outbound calls are charged “if successful”, which means that an outbound call was answered by a person, or answering machine. Disconnected numbers that pick up will be charged one credit as a reporting fee. “Unsuccessful calls” are defined as “no answer” or “busy signals”. Unsuccessful calls will not be billed and will be retried at reasonable intervals, subject to constraints of then current callback volume.
- All reminders are billed based on usage during the previous calendar month.
- All accounts include unlimited, live technical support.
- All accounts require the activation of a dedicated phone number billed at $2.50 per month.
- If a credit card is not on file, payment is due immediately and subject to penalties (a late payment penalty of $20 plus 1.5%) and interest if not paid before the next billing cycle. Billing cycles vary depending on the number of days in the prior month (i.e. there are 28 days in February and 31 in January).
- Invoices are delivered via email on the first day of the month or the first non-holiday work day that follows the first day of the month. International customers may request a paper statement for $4.50 per paper statement.
- If usage drops below the minimum, a minimum charge of $18.00 will be applied to the Subscriber’s credit card.
- The ReminderCall.com email module is a separate add-on that costs $25 per month. It includes unlimited emails for up the three locations. Additional locations cost an additional $8 per month per location.
- All payments to Reminder Services, LLC should be made in U.S. Dollars.
Termination and Renewal
Term. This Agreement will automatically renew at the end of each month unless one Party gives the other thirty (30) days written notice of non-renewal. Should Subscriber fail to pay when due, RSI may give Subscriber notice of termination, effective five (5) days after such notice.
Termination. Either party may terminate this Agreement for any reason. Either party may also terminate this Agreement in the event the other party commits any material breach of this Agreement and fails to remedy such breach within five (5) days after written notice of such breach. RSI may also suspend RSI Platform and Services immediately upon notice for cause if: (a) Subscriber violates (or gives RSI reason to believe it has violated) any provision of the Terms of Service; (b) there is an unusual spike or increase in Subscriber’s use of RSI Platform and Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the RSI Platform and Services; (c) RSI determines, in its sole discretion, that its provision of any of the RSI Platform and Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (d) subject to applicable law, upon Subscriber’s liquidation, the commencement of dissolution proceedings, disposal of Subscriber assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Subscriber becomes the subject of bankruptcy or similar proceeding.
Patient Engagement Solutions
Terms of Service Agreement
Thank you for selecting the services offered by M&H Technologies, LLC (d/b/a RavePoint) (“RavePoint”). Review these Terms of Service (“Agreement”) thoroughly. This Agreement is a legal agreement between You and RavePoint.
This Agreement describes the terms governing Your use of the RavePoint services through RavePoint’s website (together with any updates or new releases, the “Services”). You may contract for the Services directly with RavePoint or through a third-party reseller (“Reseller”). If You contract through a Reseller, there are additional provisions in this agreement related to Resellers that will also apply. You acknowledge and agree that RavePoint does not control Your Reseller and that any goods or services provided to You by Your Reseller may be subject to separate terms and conditions provided by Your Reseller. RavePoint is not a party to that agreement. You agree to bring all claims related to Your agreement with Your Reseller or any goods or services provided by Your Reseller against Your Reseller and not RavePoint.
This Agreement incorporates by reference, and You agree to be bound by, the following documents (together with this Agreement, the “RavePoint Documents”):
- The terms provided in the letter agreement with RavePoint signed by You or Your representative (the “Letter Agreement”);
- The terms provided in the applicable subscription plan, available on RavePoint’s website or otherwise made available to You in connection with the Services (the “Subscription Plan”).
- RavePoint’s business associate agreement available on RavePoint’s website or otherwise made available to You (the “Business Associate Agreement”), which applies if you are a Covered Entity (as defined by the Health Insurance Portability and Accountability Act (HIPAA)) and provide individually identifiable health information or Protected Health Information (PHI) (each as defined by HIPAA) to RavePoint as a Business Associate (as defined by HIPAA).
Your rights to use the services
The Services are protected by copyright, trade secret, and other intellectual property laws. Until expiration or termination of this Agreement and as long as You meet any applicable payment obligations and comply with this Agreement, RavePoint grants to You a personal, limited, nonexclusive, and nontransferable (except in accordance with the provisions of Section 11.4) right to use the Services for the purposes described herein. RavePoint reserves all other rights in the Services.
Paid version payments
You agree to pay to RavePoint or Your Reseller, if applicable, the fees, in the amounts and at the times specified, set forth in the Subscription Plan; provided that (a) RavePoint reserves the right, in its sole discretion and upon 30 days’ notice to You, to change its pricing at any time and (b) upon notice of a price increase, You may terminate this Agreement within, and effective as of the expiration of, such 30-day period. If You do not terminate this Agreement within such 30-day period, You will be deemed to have agreed to such price increase, and this Agreement will continue in full force and effect for the remainder of its Term (as defined below). If You initially contract through a Reseller and later (i) that Reseller ceases to offer RavePoint services or (ii) You terminate Your relationship with that Reseller, in either case, thereafter You shall make payments directly to RavePoint.
You agree to provide RavePoint with accurate and complete billing information including legal name, address, telephone number, and a valid credit card or other form of payment as mutually agreed by the parties. By submitting such credit card information, You give RavePoint permission to charge all fees incurred through Your account to the designated credit card.
If RavePoint’s charges to Your credit card are declined, Your account becomes delinquent at any time, or Your payment information is not accurate, current, and complete at any time and You did not provide RavePoint with prompt notification of such change, we may suspend or terminate Your account and refuse Your use of the Services without incurring any obligation or liability to You by reason of such suspension or termination. In addition to all other remedies that may be available: (a) RavePoint may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law, and (b) You shall reimburse RavePoint for all costs incurred by RavePoint in collecting any late payments or interest from You, including attorneys’ fees, court costs, and collection agency fees. If Your Reseller fails to pay RavePoint any amounts related to Your use of the Services, You agree, at Your own expense, to pay RavePoint directly for any services and past due amounts.
You acknowledge and agree that RavePoint will not provide refunds or credits in the case of cancellations, downgrades, or unused portions of Services. For any Services upgrade or use of the Services in excess of the service plan selected on the Subscription Plan, You acknowledge and agree that You will automatically be charged; provided that RavePoint shall have no obligation to support such excess use.
All fees and other amounts payable by You under the RavePoint Documents are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by You hereunder, regardless of whether they are imposed on You directly by the applicable authority, by Your Reseller, or indirectly through RavePoint.
1. Users. Use of the Services is limited to (a) an account owner (the “Owner”), (b) administrative user seats (the “Administrators”) which are assigned by the Owner, and (c) any regular users appointed by the Owner or Administrators (the “Regular Users,” together with the Owner and the Administrators, the “Users”).
Depending on the types of access rights granted by the Owner, Administrators and Regular Users may be able to transmit messages; delete, copy, export, or view the content and data accessible in Your account; and add additional services to Your subscription that could result in extra charges.
You agree that You shall (i) have sole responsibility for all access to and use of the Services by any person by or through Your information technology infrastructure (including, without limitation, computers, software, hardware, databases, electronic systems (including electronic health records systems and practice management systems), and networks, whether operated directly by You or through the use of third-party services) (collectively, “Systems”) or any other means controlled by You or any other User, including any (A) information, instructions, or materials provided by any of them through the Services or to RavePoint; (B) results obtained from any use of the Services; and (C) conclusions, decisions, or actions based on such use, and (ii) be jointly and severally liable for any breaches of the RavePoint Documents by such persons.
2. Security Measures. Each User may access the Services using his or her own unique username and password. You shall take full responsibility and liability for the security of each User’s username and password (including, without limitation, any username and passwords assigned to such Users) and shall be solely responsible for all use of the Services through such usernames or passwords. You agree to immediately notify RavePoint of any unauthorized use of the Services or any other breach of security that is known to You.
4. Systems. You represent and warrant that You (a) have and will retain sole control over the operation, maintenance, and management of, and all access to and use of, Your Systems; (b) are solely responsible for ensuring that Your Systems are compatible with the Services; and (c) will provide all cooperation and assistance as RavePoint may reasonably request to enable RavePoint to exercise its rights and perform its obligations under and in connection with the RavePoint Documents.
In providing the Services, it may be necessary or convenient for RavePoint to receive data from Your third-party providers, which You will designate in the process of setting up the Services. If You elect to change, upgrade, or materially alter any third-party provider or any third-party Systems, RavePoint does not guarantee that all Customer Data (as defined below) or Services functionality will be preserved. You are responsible for communicating to RavePoint any changes in Your third-party providers or Your or any of Your third party provider’s Systems (including, without limitation, data structure, management system, or hardware upgrades) that may impact RavePoint’s ability to provide the Services; provided that no change may be made that may materially impact RavePoint’s ability to provide the Services without RavePoint’s prior written consent, which will not be unreasonably withheld. You agree, and agree to use best efforts to cause Your third-party providers to comply with any and all applicable Interoperability Rules and furthermore (a) to facilitate and cooperate with RavePoint in good faith to ensure that any changes to Your third-party providers or Your or any of Your third-party provider’s Systems (including, without limitation, electronic health records systems and practice management systems) will be interoperable with RavePoint’s Services and (b) not to engage in willful information blocking or any other practice that does or reasonably could interfere with, prevent, or discourage RavePoint’s access, exchange, or use of such Systems. In addition, You are responsible for providing RavePoint with accurate instructions and information regarding Your third-party providers and Your and Your third-party providers’ Systems, and You bear all responsibility for incomplete, inaccurate, or otherwise faulty information.
Support and Maintenance
1. Support. Except as otherwise explicitly provided in a separate Support Agreement between You and RavePoint, RavePoint will use commercially reasonable efforts to provide You with support and maintenance for the Services between the hours of 9:00AM and 5:00PM Eastern Time, Monday through Friday, excluding national holidays. To the extent any support services result from problems, errors, or inquiries relating to systems or any other network, equipment, service, or software not owned, controlled, or procured by RavePoint, RavePoint will have the right to charge You in accordance with its then-current policies.
2. Updates. “Update” means a subsequent release of the Services which RavePoint generally makes available for its customers at no additional fee. Updates do not include any release, option, application, or feature that RavePoint licenses separately. RavePoint will provide Updates during the Term when available (as determined by RavePoint). RavePoint is under no obligation to develop any future Services, applications, or functionality. If an Update to a Service is made available to You, it shall replace the previous version of such Service.
3. Modification to Services. RavePoint has the right, in its sole discretion, to revise, update, or otherwise modify the Services. With regard to a change that causes a key feature or functionality of the Services to be terminated or materially altered (a “Material Modification”), to the extent reasonably possible, RavePoint will provide You with reasonable notice either posted on the website hosting the Services or sent to the Owner’s email address; provided that, in the event RavePoint needs to maintain the security of the system or comply with any laws or regulations, RavePoint reserves the right to modify the Services immediately, without prior notice, so long as RavePoint provides electronic notice of any Material Modifications within 30 days. Your continued use of the Services will constitute Your acceptance of and agreement to such changes.
1. Customer Data. You have and will retain sole responsibility for: (a) all information, instructions, and materials provided by You or on Your behalf in connection with the Services and (b) Your third-party providers and Your and Your third-party providers’ Systems. RavePoint does not own any information or material that You submit to RavePoint in the course of using the Services (the “Customer Data”).
You agree that You, and not RavePoint, shall have sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data and, except as provided in the RavePoint Documents or as required by law, RavePoint shall not be responsible or liable for (i) the deletion, correction, or destruction of, damage or loss to, or failure to store any Customer Data; (ii) the improper or erroneous upload or extraction of any Customer Data; or (iii) any failure to provide the Services caused by inaccurate or incomplete Customer Data. RavePoint reserves the right to suspend its Services without notice upon any breach of any RavePoint Document including, without limitation, Your non-payment in accordance with the Terms of the RavePoint Documents. Upon expiration or termination of this Agreement, Your right to access or use Customer Data through RavePoint’s Services immediately ceases and RavePoint shall have no obligation to maintain or forward any Customer Data.
You further acknowledge and agree that RavePoint may have obligations to disclose information relating to one of Your patients to such patient or its designee, including under the Interoperability Rules. You agree to assist RavePoint in meeting those obligations, including by obtaining from the patient all information and consents required by law and by providing RavePoint all information it requests.
2. No Implied License. Except for the limited authorizations to use the Services expressly granted by RavePoint to You hereunder, RavePoint grants no license to, and RavePoint (and its licensors) shall retain all right, title, and interest in and to, the Services (including all intellectual property and proprietary rights embodied therein). You shall not take any action inconsistent with such rights.
Ravepoint’s Representations and Warranties
Beginning after the expiration of any no-risk evaluation period that RavePoint may provide (the “Evaluation Period”), RavePoint makes the following representations and warranties to You: (a) the Services provided hereunder will in all material respects conform to and perform in accordance with the RavePoint Documents and (b) RavePoint is the owner of its software or otherwise has the right to grant to customer the rights to use the Services set forth in the RavePoint Documents.
1. Confidentiality. For the purposes of this Agreement, “Confidential Information” shall mean RavePoint’s information in any form or medium (whether oral, written, electronic, or other) that RavePoint considers confidential or proprietary, including but not limited to technology, business operations, plans, strategies, customers, pricing, data, analyses, processes, know-how, compilations, and trade secrets. Confidential Information does not include information that You can demonstrate by written or other documentary records was or is: (a) rightfully known to You without restriction on use or disclosure prior to such information’s being disclosed or made available to You in connection with this Agreement; (b) generally known by the public other than by Your or Your representatives’ noncompliance with this Agreement; (c) received by You on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) independently developed by You without reference to or use of any Confidential Information. For the avoidance of any doubt, Confidential Information does not include PHI.
As a condition to being provided with any disclosure of or access to Confidential Information, You shall, during and after the Term of this Agreement: (i) not access or use Confidential Information other than as necessary to exercise Your rights or perform Your obligations under and in accordance with the RavePoint Documents; (ii) not disclose or permit access to Confidential Information other than to Your representatives who need to know such Confidential Information for purposes of Your exercise of Your rights or performance of Your obligations under and in accordance with the RavePoint Documents and who have been informed of the confidential nature of the Confidential Information and Your obligations under this Section; (iii) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care You use to protect Your similarly sensitive information and in no event less than a reasonable degree of care; and (iv) ensure Your representatives’ compliance with, and be responsible and liable for any of Your representatives’ non-compliance with, the terms of this Section.
2. Compelled Disclosure. If You or any of Your representatives are compelled by applicable law, regulatory authority or other applicable legal process (by deposition, interrogatory, request for information or documents, subpoena, civil investigative demand or other similar process or compulsion) to disclose any Confidential Information, then, to the extent permitted by applicable law, You shall (a) promptly and prior to such disclosure notify RavePoint in writing of such requirement so that RavePoint can seek a protective order or other remedy or waive its rights under Section 8.1 and (b) provide reasonable assistance to RavePoint in opposing such disclosure or seeking a protective order or other limitations on disclosure. If RavePoint waives compliance or, after providing the notice and assistance required under this Section, You remain required by law to disclose any Confidential Information, then You shall disclose only that portion of the Confidential Information that, on the advice of Your legal counsel, You are legally required to disclose and, on RavePoint’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Disclaimers, indemnification, and limitation of liability
1. DISCLAIMERS. ALL SERVICES PROVIDED BY RAVEPOINT ARE “AS IS,” AND RAVEPOINT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, RELATED THERETO, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, RAVEPOINT MAKES NO WARRANTY OF ANY KIND THAT ITS SERVICES OR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY SERVICES AND MATERIALS ARE PROVIDED “AS IS,” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY SERVICES OR MATERIALS PROVIDED TO YOU BY A THIRD PARTY (INCLUDING, WITHOUT LIMITATION, A RESELLER) IS STRICTLY BETWEEN YOU AND SUCH THIRD PARTY AND NOT RAVEPOINT.
2. Indemnification. Beginning after the expiration of any Evaluation Period, RavePoint shall indemnify, defend, and hold harmless You and Your officers, directors, managers, members, employees, agents, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all losses incurred by such Customer Indemnitee in connection with any action by a third party that arises out of or relates to any (a) infringement by RavePoint of such third party’s U.S. intellectual property rights or (b) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by RavePoint in connection with the RavePoint Documents; provided that RavePoint shall have no obligation under this Section or any other liability for any claim resulting or alleged to result from any action or inaction by or on behalf of You, any User, or any of Your third-party providers (including without limitation, any Reseller).
Beginning on the effective date of this Agreement, You shall indemnify, defend, and hold harmless RavePoint and its subcontractors and affiliates, and each of its and their respective officers, directors, managers, members, employees, agents, successors, and assigns, from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, fees, costs, or expenses of whatever kind (including, without limitation, attorneysʹ fees, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers) arising out of or in connection with any third‐party claim, suit, action, or other proceeding that arises out of or relates to: (a) Your use of the Services, including any (i) processing, use, disclosure, collection, maintenance, or protection of Customer Data by or on behalf of RavePoint in accordance with the RavePoint Documents or otherwise as directed or caused by You or (ii) messages sent by RavePoint at Your direction; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by You or on Your behalf, including RavePoint’s compliance with any specifications or directions provided by You or on Your behalf to the extent prepared without any contribution by RavePoint; (c) any allegation of facts that, if true, would constitute breach of any of Your representations, warranties, covenants, or obligations under this any of the RavePoint Documents; or (d) any negligence or more culpable act or omission (including recklessness or willful misconduct) by You, any User, or any third party on Your behalf in connection with the RavePoint Documents.
3. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RAVEPOINT OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE RAVEPOINT DOCUMENTS OR THEIR SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF RAVEPOINT AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THE RAVEPOINT DOCUMENTS OR THEIR SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU OR CHARGED BY RAVEPOINT FOR THE SERVICES DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IF YOU CHOOSE TO ENTER INTO AN AGREEMENT WITH A RESELLER, YOU ACKNOWLEDGE THAT SUCH RESELLER IS SOLELY RESPONSIBLE FOR ALL OF ITS EMPLOYEES AND AGENTS AND FOR ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, AND DEBTS OF ANY TYPE WHATSOEVER THAT MAY ARISE ON ACCOUNT OF RESELLER’S ACTIVITIES OR THOSE OF ITS EMPLOYEES OR AGENTS.
4. Customer Representations and Warranties. You represent, warrant, and covenant to RavePoint that You own or otherwise have and will have the necessary rights and consents in and relating to the Customer Data so that, as received by RavePoint and processed in accordance with the RavePoint Documents, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable law.
Term and Termination
1. Term. The “Term” of this Agreement shall be as set forth on the Subscription Plan.
2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement, RavePoint may immediately terminate this Agreement and suspend, terminate, or otherwise deny Your access to or use of all or any part of the Services, without notice and without incurring any resulting obligation or liability, if: (a) RavePoint receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires RavePoint to do so; (b) RavePoint believes, in its sole discretion, that You (i) have failed to comply with any term of the RavePoint Documents or (ii) You are, have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities; or (c) You become insolvent or are generally unable to pay, or fail to pay, Your debts as they become due. The rights provided in this Section are in addition to, and not to the exclusion of, any of RavePoint’s other rights or remedies whatsoever, including any rights or remedies at law, in equity, or under the RavePoint Documents.
You may terminate this Agreement (a) effective on 30 days’ written notice to RavePoint, if RavePoint materially breaches the terms of any of the RavePoint Documents and such breach is: (i) incapable of cure or (ii) being capable of cure, remains uncured for 30 days after You provided RavePoint with notice of such breach or (b) as provided in Section 2.
All notices required or permitted to be given hereunder shall be in writing and shall be deemed given: (a) when hand-delivered, receipt required (b) the next business day after deposit with Federal Express, UPS or other nationally recognized overnight courier service, with overnight delivery charge prepaid, receipt required, or (c) when transmitted via electronic mail with delivery confirmation.
3. Effects of Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (b) You shall immediately cease all use of any Services and at RavePoint’s written request destroy all documents and tangible materials containing, reflecting, incorporating, or based on Confidential Information and permanently erase Confidential Information from all systems You directly or indirectly control; (c) RavePoint may disable all Your access to the Services; (d) if You terminate this Agreement pursuant to Section 10.2, You will be relieved of any obligation to pay any fees attributable to the period after the effective date of such termination; and (e) if RavePoint terminates this Agreement pursuant to Section 2 or 10.2, all fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable and You shall pay such fees, together with all previously accrued but not yet paid fees, on receipt of RavePoint’s invoice therefor.
1. Entire Agreement. This Agreement, together with the other RavePoint Documents, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
2. Governing Law; Submission to Jurisdiction. This Agreement shall be interpreted whether as to validity, capacity, performance, or remedy according to the laws of the State of Florida, regardless of its conflict of law provisions. Each party irrevocably and unconditionally agrees that it will not commence or maintain any action, litigation, or proceeding of any kind whatsoever against any other party in any way arising from or relating to this Agreement in any forum other than the Middle District of Florida or the courts of the State of Florida sitting in Sarasota County and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
3. Equitable Remedies. You acknowledge and agree that a breach or threatened breach by You of any of Your obligations under Section 1, 8.1, or 8.2 would cause RavePoint irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, RavePoint will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
4. Assignment; Successors and Assigns. The RavePoint Documents are automatically binding upon and inure to the benefit of You and Your successors and assigns. For the avoidance of doubt, the RavePoint Documents will continue to bind You or any successor or assign even if You are involved in any merger, consolidation, reorganization, or change of control (regardless of whether You are a surviving or disappearing entity).
5. Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
6. Publicity. Neither party will make public announcements or issue press releases relating to this Agreement or the terms hereof without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
7. Force Majeure. In no event will RavePoint be liable or responsible to You or be deemed to have defaulted under or breached any of the RavePoint Documents for any failure or delay in fulfilling or performing any term when and to the extent such failure or delay is caused by any circumstances beyond RavePoint’s reasonable control (a “Force Majeure Event”) including, but not limited to, acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. You may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days.
In the event of any failure or delay caused by a Force Majeure Event, if you have subscribed to a Paid Version RavePoint shall give prompt written notice to You stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
8. Amendment and Modification (Non-Enterprise Customers). RavePoint reserves the right to change this Agreement at any time, and the changes will be effective when posted through the Services, on our website for the Services, or when we notify you by other means. Your continued use of the Services indicates Your agreement to the changes. RavePoint may also change or discontinue the Services, in whole or in part, at any time.
9. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
10. WAIVER OF JURY TRIAL. IN THE EVENT A TRIAL ON AN ISSUE BETWEEN THE PARTIES IS REQUIRED, THE PARTIES CHOOSE TO HAVE A JUDGE CONDUCT A BENCH TRIAL ON SUCH ISSUES. THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
11. Electronic Signatures. You agree that this Agreement may be executed by use of electronic signature and that electronic signatures will have the same validity, enforceability, and admissibility as handwritten signatures.
12. Surviving Terms. The provisions set forth in the following sections and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement will survive any expiration or termination of this Agreement: Sections 8.1, 8.2, 9.2, 9.3, 10.3, 11.3, and this Section 11.12.