Terms and Conditions
The content available from Licensor through use of the Services (as hereinafter defined) is the sole property of Licensor and is protected by copyright, trademark and other intellectual property laws. Except as otherwise explicitly agreed in writing, Licensor owned content received through the Services may be downloaded, displayed, reformatted and printed for the Licensee’s commercial use only under the terms of the Activation Agreement (as hereinafter defined).
Terms and Condition of Use
This MediSked ASP-Terms and Conditions of Use Agreement (the “Terms”) is an Exhibit to the Activation Agreement between Licensor and Licensee and sets the terms and conditions of Licensee’s use of the services provided to Licensee by Licensor as set forth herein (and in the Activation Agreement of which this is a part) (collectively, the “Services”) and of the MediSked website provided to Licensee as a part thereof (“Website”).
The Terms explain further Licensor’s obligations to Licensee, and Licensee’s obligations to Licensor in relation to the Services and Website. When Licensee or someone else Licensee has permitted, uses, modifies or cancels the Services on Licensee’s behalf (even if Licensor was not notified of such authorization), or requests or purchases additional services from Licensor under Licensee’s account, the Terms cover any such service or action.
Licensee acknowledges that it has read, understood, and agrees to be bound by all terms and conditions of the Terms, as well as all other applicable agreements between Licensor and Licensee as defined in or otherwise incorporated into the Activation Agreement, dated the Effective Date, by and between Licensor and Licensee (the “Activation Agreement”), which are incorporated herein by reference, such as any pricing agreement and HIPAA Business Associate Contract and any additional rules or policies or services agreements that are or may be established by Licensor from time to time. All sections of the Terms apply to any and all services provided by Licensor.
LICENSEE ACKNOWLEDGES AND AGREES THAT ITS RIGHTS TO THE SERVICES (INCLUDING USE OF THE SAAS AND THE WEB SITE) ARE NOT EXCLUSIVE, AND ARE ONLY COMPRISED OF THOSE RIGHTS CONVEYED TO LICENSEE IN THE TERMS AND THE ACTIVATION AGREEMENT, SUBJECT TO THE LIMITATIONS STATED HEREIN AND THEREIN.
User Name and Password; Account Management
The first time Licensee applies to use the Services, Licensee will be given a User Name and Password. That User Name and Password are the means through which Licensee can access certain of the Services. Licensee acknowledges and agrees that it is Licensee’s responsibility to safeguard the User Name and Password from any unauthorized use, including by Licensee’s agents and assignees. IN NO EVENT WILL LICENSOR BE LIABLE FOR THE UNAUTHORIZED USE OR MISUSE OF LICENSEE’S USER NAME OR PASSWORD.
Certain Services users have a higher-level access to the SaaS. If Licensee is one of those users, Licensee may use the high level of access to the SaaS to modify certain records concerning the Services.
Licensee is responsible for maintaining the security of its account, and Licensee is fully responsible for all activities that occur under that account and in connection with its use of the Services, and for any other actions taken in connection with the Website, including those of its agents, assignees and other users. Licensee agrees to notify Licensor immediately of any unauthorized uses of its account or any other breaches of security on the Website. Licensee acknowledges and agrees that Licensor cannot and will not be liable for any loss or damage from Licensee’s failure to comply with this security obligation, or for any acts or omissions, of Licensee or any of its agents, assignees or Licensee’s authorized users of the Services, including any damages of any kind incurred as a result of such acts or omissions.
In the event that (i) in applying for Services Licensee provides information about a third party, Licensee hereby represents and warrants that it has (a) provided notice to that third party of the disclosure and use of that party's information as set forth in the Activation Agreement, and (b) obtained that third party's express consent to the disclosure and use of that party's information as set forth in the Activation Agreement.
Licensee acknowledges and agrees that willfully providing inaccurate or unreliable information or willfully failing to update information promptly will constitute a material breach of the Activation Agreement. Licensee further acknowledges and agrees that Licensor will not be held liable for any damages whether incidental, consequential, special, punitive or liquidated or lost or imputed profits for the willful, non-willful or accidental providing of inaccurate or unreliable data or omission of necessary data to Licensor in furtherance of any service that Licensor may provide for Licensee.
Disclosure and Use of Information
Subject to the terms of the Activation Agreement, which in the event of any conflicts with the Terms supersedes the Terms:
Licensee acknowledges and agrees that Licensor may make available information Licensee provides or that Licensor otherwise maintains, to such public or private third parties as applicable laws require or permit, including, but not limited to, making publicly available, or directly available, some or all of such information: (i) for inspection by law enforcement officials (including in the case of potential criminal activity); (ii) to respond to criminal and civil subpoenas and court orders that reasonably appear to be valid; (iii) in connection with the sale of all or certain of our assets; (iv) to enforce or apply the Terms or the Activation Agreement; and (v) to protect the rights, property, or safety of Licensor, its users, or others, whether during or after the Term or Licensee’s use of the Services.
Licensee acknowledges and agrees, as does Licensor, that all applicable information provided to Licensor will be governed by HIPAA Privacy and HIPAA Security standards.
Licensee hereby consents to any and all such disclosures and uses of, guidelines, limits and restrictions on disclosure or use of, information provided by Licensee in connection with use of any Services (including any updates to such information), whether during or after the Term of the Activation Agreement. Licensee hereby irrevocably waives any and all claims and causes of action it may have arising from such disclosure or use of information provided by Licensee to Licensor.
Licensor will not process data about any identified or identifiable natural person that is obtained from Licensee in a way incompatible with the purposes and other limitations described in the Activation Agreement.
Licensor will take reasonable precautions to protect the information it obtains from Licensee from the loss, misuse, unauthorized access or disclosure with respect thereto or use, or alteration or destruction, of that information. Licensor will have no liability to Licensee or any third party with respect thereto to the extent such reasonable precautions are taken.
Limitation of Liability
YOU AGREE AND ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. YOU AGREE THAT LICENSOR WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY (a) TERMINATION, SUSPENSION, LOSS, OR MODIFICATION OF YOUR SERVICE(S), (b) USE OF OR INABILITY TO USE THE SERVICE(S), (c) INTERRUPTION OF BUSINESS, (d) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS WEBSITE OR A SERVICE (e) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, (f) EVENTS BEYOND MEDISKED’S AND SUBCONTRACTOR'S REASONABLE CONTROL, (g) THE PROCESSING OF YOUR SERVICE APPLICATION, (h) APPLICATION OF ANY APPLICABLE LAW, REGULATION OR MEDISKED POLICY (INCLUDING, WITHOUT LIMITATION, ANY RELEVANT DISPUTE POLICY OR ANY OTHER HIPAA STANDARDS(OR SIMILAR GOVERNMENTAL OR SUCCESSOR ORGANIZATION ADOPTED POLICIES), (i) DISBURSEMENT OR NON-DISBURSEMENT OF FUNDS BY PAYMENT PROCESSORS; (j) TRANSACTIONS CONDUCTED ON THE WEB SITE, INCLUDING FRAUDULENT TRANSACTIONS; (k) LOSS INCURRED IN CONNECTION WITH YOUR SERVICE(S), INCLUDING IN CONNECTION WITH E-COMMERCE TRANSACTIONS; (l) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (m) STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING YOUR SERVICE(S), OR (n) ANY OTHER MATTER RELATING TO YOUR USE OF THE SERVICE(S). MEDISKED ALSO WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, GOODWILL, DATA, THE COST OF REPLACEMENT GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF MEDISKED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MEDISKED'S MAXIMUM AGGREGATE LIABILITY EXCEED FIVE HUNDRED DOLLARS ($500), AS SPECIFIED IN ACTIVATION AGREEMENT. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
THE ABOVE LIMITATION ON LIABILITY SPECIFICALLY AND EXPRESSLY INCLUDES ANY LOSSES TO YOU ARISING FROM THE WEBSITE BEING DOWN OR INOPERATIVE, FOR ANY FALSE, INACCURATE OR OMMITTED DATA ENTERED INTO THE WEBSITE INCLUDING BILLING AND MEDICAID/ MEDICARE RELATED DATA AND FOR ANY INFORMATION OR DATA THAT YOU HAVE REQUESTED THAT MEDISKED OR ANY OF ITS EMPLOYEES OR AGENTS ENTER FOR YOU INCLUDING BILLING AND MEDICAID/MEDICARE RELATED DATA.
You agree to defend, indemnify and hold harmless MediSked, its subsidiaries, affiliates, officers, directors, agents, partners, employees and attorneys for any loss, liabilities, damages, costs or expenses, including reasonable attorneys' fees, resulting from any third party claim, action, or demand arising out of or related to (i) your use of or connection to the Services which includes but is not limited to modification or distribution of the software or program, its output, or any accompanying documentation, (ii) your use of the website or other Service; (iii) your Content; (iv) your breach or violation of any term, condition, representation or warranty of this Agreement; or (v) your violation of any rights of others.
Disclaimer of Warranties
THE SERVICES ARE PROVIDED TO YOU ON AN "AS IS," AS AVAILABLE BASIS. MEDISKED MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR SERVICE GUARANTEES, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. MEDISKED FURTHER DISCLAIMS ANY REPRESENTATION OR WARRANTY: (i) THAT THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES, OR (iv) THAT ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. NO ORAL OR WRITTEN ADVICE OR INFORMATION GIVEN BY MEDISKED, ITS EMPLOYEES, LICENSEES OR THE LIKE WILL CREATE A WARRANTY OR GUARANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THE AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. The section titles in the Agreement are for convenience only and have no legal or contractual effect.