Practice Sense – Terms of Service Agreement
Last Update: January 2, 2018
We have developed the Terms of Service to detail as clearly as possible the respective rights, duties, and obligations of Practice Sense (“Practice Sense”) and you (the “Client,” or “You”).
We recommend that you read the following terms and conditions carefully and urge you to print or save a copy of this Agreement for your records and to review it with your legal and other advisors prior to acceptance. Should you have any questions about our Services or the terms provided in this Agreement, feel free to contact us at [email protected]
By clicking the “I AGREE” option, creating an account, accessing an account, or paying for or using our Service(s), You (or, if applicable, the entity you are acting for or on behalf of) accept that the terms, obligations, rights and conditions specified here will form a legally binding agreement (the “Agreement”) between You and Practice Sense.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT AND, “YOU”, “YOUR”, ‘SUBSCRIBER’ OR RELATED CAPITALIZED TERMS IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY AND IT’S AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.
If you do not agree with the terms and conditions below, do not click the “I AGREE” option, do not create an account, or use the Services. If you do not agree with these terms and conditions in full, you are not authorized to use the Services in any fashion for any purpose whatsoever.
All Capitalized terms used in this Agreement have the meanings set forth below.
“Affiliated Entities or Affiliates” means any licensors and suppliers providing any or part of the Software and/or Services; and all subsidiaries, affiliates, directors, officers, employees, consultants, and agents of Practice Sense and of any of the foregoing.
“Confidential Information” means all nonpublic information disclosed by Practice Sense and our Affiliates or by You that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to a party’s technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that a party is obligated to keep confidential; and (c) the nature, content, and existence of discussions or negotiations between the parties. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by a party without reference to the other party’s Confidential Information.
“Content” means any and all information, data, and protected health information (PHI), regardless of the file format or file contents (and includes, without limitation, all photographs, text, images, audio clips, sounds, videos, databases, e-mails, computer programs, as well as any other files) uploaded by or for You in connection with Your use of the Services.
“PHI” or protected health information, means Individually Identifiable Health Information, as defined in 45 CFT 160.103, that is transmitted in any medium that identifies an individual or creates a reasonable basis to believe the information can be used to identify an individual and relates to (i) the past, present or future physical or mental health or condition of an individual; (ii) the provision of health care to an individual; or (iii) the past, present or future payment for the provision of health care to an individual. Protected Health Information is limited to that information received by Practice Sense from or on behalf of the Client.
“Client, You or Your” means the individual or legal entity purchasing, opening, or utilizing an account for Practice Sense services under this Agreement.
“Service Order” means any quote or service form, electronic or otherwise, provided to You by Practice Sense in connection with Your subsequent selection of Services.
“Order” or “Order Form” means the Practice Sense approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online payment process.
“Pricing Page” means http://www.practicesense.com/pricing
“Subscription Fee” means the amount you pay for the Subscription Service.
“Services” means the Practice Sense plans, features and offerings offered by Practice Sense, as modified from time to time by Practice Sense in its sole discretion, and selected for use by You at the time of enrollment and accepted by Practice Sense and as then amended by You or Practice Sense from time-to-time thereafter.
“Software” means the Practice Sense software offerings, programs and any third party software programs supplied by Practice Sense to Client and documentation (whether hard copy or electronic) and media related thereto.
“Term” means the duration of this Agreement commencing with the earliest of the date: (i) that Practice Sense accepts Client’s order for Services, or (ii) that Client first accesses or uses the Services, and continuing until the end of the applicable Services period as designated by Practice Sense either pursuant to the Services Order, subject to earlier termination in accordance with this Agreement. The initial term of engagement shall automatically renew for an additional one (1) year period unless either party delivers written notice of non-renewal to the other party at least thirty (30) calendar days before a term expires.
“User(s)” means the individual(s) accessing or using the Practice Sense services for or on behalf of the Client.
1. Practice Sense Services; Ordering, Pricing & Payments.
(i) Your Account. To access the Services, an account will be created for you after you provide a valid e-mail address and contact information, and you are solely responsible for ensuring that your contact and, if applicable, billing information remains accurate and current. Unless authorized by Practice Sense in writing, you may only create one account per email address. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement or as required by applicable state, federal and local laws, rules and regulations, we and our Affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 2, Access to Services; Suspension; Termination.
(ii) Free Trials. We may from time to time offer free trials of the Service for a maximum set duration period, commencing on the date that your application for a free trial is accepted by us and ending as specified in the free trial sign-up process. During the free trial period, the Services are provided purely “AS IS” without any warranties, express or implied, or representations to you on our part and you may not use Services acquired for trial purposes for any production purposes. In addition, the Service Level Agreement is expressly not applicable to your usage during any free trial and no Service Credits will be granted. Before your free trial period expires, we may contact you directly or via one of our appointed resellers and invite you to purchase Services. By subscribing to a free trial, you expressly acknowledge and consent that we may contact you in connection with Services using the contact details you have provided. If you do not purchase Services following your free trial, this Agreement will terminate upon expiration of the free trial period and you must (i) immediately cease to use the Service, (ii) delete any copies of Software and Documentation, and (iii) remove all of your Content and settings from our network.
(iii) Pricing; Payment; Service Fees. Your price for existing Services may be adjusted from time to time upon 30 days written notice to you, but will not increase in any contiguous twelve-month period by more than 15%. Any such price level changes are not retroactive. We calculate and invoice fees and charges monthly. You will pay Practice Sense the applicable fees and charges for Services, using one of the payment methods we support as described in the order process. All amounts payable under this Agreement will be made without setoff or counterclaim and without any deduction or withholding. Fees and charges for any new Service or features will be effective when updated fees and charges, if any, are posted on Practice Sense’s website. Interest at the rate of 1.5% per month (or the highest rate permitted by law, whichever is less) may be applied to all late payments until your account is current and fees and charges due are paid in full. If served with legal process (i.e. subpoena, governmental order, etc.) arising from your account or your use of Services the reasonable costs (e.g., data duplication and transfer, etc.) and any necessary outside attorney’s fees required to effectively respond to such legal process may be charged to you. You agree that we may audit your usage and level of Services remotely, at any time, in order to verify applicable fees. In addition, but not more than once in each calendar year, we (or our independent agent) may reasonably request records from you for the purpose of auditing your compliance with the terms and conditions of this Agreement, including without limitation your payment of all applicable fees. If an audit reveals that you have underpaid fees, we will invoice you for an amount equal to the shortfall between the fees due and those actually paid by you. You agree to pay us for such shortfall within 30 days of the date of invoice.
(iv) Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term.
(v) Fee Adjustments at Renewal. Upon renewal, your subscription will be adjusted to match the account usage at the end of your then-current Subscription Term.
(vi) Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
(vii) Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Practice Sense portal. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
(viii) Taxes. Unless otherwise agreed, You will pay any taxes (whether sales, use, VAT or otherwise) and duties applicable to your use of Services, or provide Practice Sense with a valid taxation exemption certificate for your applicable taxing jurisdictions. You acknowledge that we may make certain reports to tax authorities regarding transactions that we process. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates.
2. Access to Services; Suspension and Termination.
Subject to Your compliance with the terms and conditions of this Agreement, Practice Sense grants You a non-exclusive, revocable right to access and use the Services during the Term.
a. Term and Renewal. Your subscription period will be specified in your Order, and your subscription will automatically renew for the shorter of the subscription period, or one year. The renewal pricing set forth in your Order will apply, subject to adjustment as specified in the Pricing &(and) Payments’ section above. If renewal pricing is not included in your Order, then our standard pricing available on our Pricing Page will apply. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription
To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in the ‘Subscription Types’ outlined below.
b. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and you cannot cancel it before its expiration. We do not provide refunds if you decide to stop using the Practice Sense subscription during your Subscription Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, our customers, or the security of the Practice Sense platform. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services three (3) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
f. Suspension for Present Harm. If your website on, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.
g. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
h. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the affected Subscription Service, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
i. Notice of Non-Renewal. Your subscription will automatically renew according to the ‘Term and Renewal’ section above.
To prevent renewal of a Full-Service Subscription, you or we must give written notice of non-renewal and this written notice must be received no more than sixty (60) days but no less than thirty (30) days in advance of the end of the Subscription Term. If you decide not to renew, you may send the notice of non-renewal by email to [email protected]
To prevent continuation of the Subscription Term of a Free Subscription, you or we may close your account.
j. Retrieval of Customer Data. For our Full-Service Subscriptions, as long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. If we provide you with temporary access to the portal, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
3. Ownership of Intellectual Property, Software and Services.
The Software and Services are licensed, not sold, solely for use by Client and its Users under the terms of this Agreement. Except as specifically set forth herein, Practice Sense and the Affiliated Entities retain all right, title, and interest, including all intellectual property and moral rights, relating to or embodied in the Software or Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Software or Services. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Marks”) relating to the Software or Services are the trademarks of Practice Sense and/or the Affiliated Entities. You are prohibited from using any Marks without the prior written permission, which shall be at the sole and exclusive discretion, of Practice Sense or the applicable Affiliated Entities. Practice Sense reserves all rights and interests not expressly granted in this Agreement, and no direct or indirect ownership interest or license right in or to the Practice Sense of Affiliated Entities’ Marks, the Services, Software or any other Practice Sense or Affiliate Entity intellectual property is granted to Client or created by implication in this Agreement. Unless You direct otherwise, You agree that Practice Sense may list You as a client of the firm in our marketing, business development and/or public relations materials and announcements.
You shall not reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Software or Services. Unless expressly set forth herein, You may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services. You may not resell or act as a service bureau for the Services or any component thereof. You may not remove from the Software or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings.
5. Maintenance and Client Service.
Practice Sense will perform regular maintenance. In certain circumstances, Practice Sense may need to perform emergency maintenance and will, to the extent reasonably possible, provide advance notice of such emergencies. Any such maintenance, whether regular or emergency, will not in any way qualify as a Services “Unavailability”.
6. Electronic Communications; Notices.
The Services are conducted electronically and You agree that Practice Sense may communicate electronically with You and any Users for any matters relating to the Services or Software, including but not limited to information and notifications regarding product updates, incentive and rewards programs, training opportunities and ways to more efficiently use the Services, and legal notices of any kind, including cancellation and termination, unless prohibited by law. Any notices required under this Agreement to Practice Sense shall be in writing and shall be either (i) personally delivered or delivered via overnight courier or (ii) via certified mail, return receipt requested, at the address provided to you for such notices, or such new address as may from time to time be designated in writing by Practice Sense, and to the attention of the individuals likewise provided to you, or, if authorized by Practice Sense (iii) to the email address supplied to you for the purposes of the applicable notice. The notice shall be deemed to have been given by Practice Sense on the date Practice Sense sent the relevant electronic communication with applicable receipt of delivery.
7. Updates; Applicable Terms and Authorization for Auto Updates.
Practice Sense may, in its sole discretion, provide, and this Agreement shall apply to, all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Software or Services (collectively, “Updates”) that Practice Sense may provide or make available generally to its clients after the date that the Services commence, subject to any additional terms and conditions provided by Practice Sense applicable to such Updates. You hereby authorize Practice Sense to, in accordance with Practice Sense’s standard operating procedures, automatically and in good faith transmit, install, and otherwise provide Updates to the Software upon Your access to the Services or Software without further notice or consent.
8. Privacy and Security.
9. Your Data Security Obligations.
You are fully responsible for the security of data on Your site or otherwise in Your possession. You agree to comply with all applicable state and federal laws and rules in connection with Your collection, security, and dissemination of any protected health information (PHI) on Your site. You agree that at all times You shall be compliant with HIPAA and HITECH requirements, as applicable. For more information about implementing Practice Sense, please refer to our documentation. If we believe that it is necessary based on Your implementation and we request it of You, then You will promptly provide us with documentation evidencing Your compliance with HIPAA and HITECH. Information on the HIPAA rules can be found on the US Department of Health and Human Services (HHS) website. It is Your responsibility to comply with these standards.
10. Ownership of Content; Limited License to Content.
Practice Sense does not claim ownership of any Content. As between Practice Sense and You, You are the Content Owner or applicable Licensor. In connection with our provision of Service to You, Except as otherwise provided in this Agreement, as between You, on the one hand, and Practice Sense or Affiliated Entities, on the other hand, You retain all right, title, and interest in and to the Content. You acknowledge that the Services are provided by automated means and that Practice Sense personnel will not access, use, or disclose any Content, except as necessary to perform the Services, including but not limited to the following: (i) during a Services interruption as necessary to restore applicable Content at Your request; (ii) upon Your request that Practice Sense serve as host, producer, or facilitator as part of the Services; (iii) as a result of Practice Sense, at Client’s request, providing, if applicable, remote desktop support to Client; or (iv) as reasonably deemed necessary or advisable by Practice Sense, at its sole but reasonable discretion, to conform to applicable legal requirements or to comply with legal process. You hereby grant to Practice Sense a non-exclusive, worldwide, royalty-free, fully paid, irrevocable, transferable license to host, cache, store, display, record and copy Content solely for the purpose of providing the Services to You during the Term.
11. Representations and Warranties About Content.
You represent that You: (i) are the owner or authorized licensee of any and all Content; (ii) will not publish, post, upload, record, or otherwise distribute or transmit Content using the Software or Services that: (a) infringes or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party; (b) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy, or data security); (c) is profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (d) is harmful to minors or pornographic; (e) contains any viruses, Trojan horses, worms, time bombs, malware, cancelbots, corrupted files, or any other similar software, data, or programs that may damage, delete, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (f) is materially false, misleading, or inaccurate.
12. Retention of Content.
As long as Your account is active, You shall be responsible for managing and retaining any of Your Content. Other than as required by applicable law or legal process or as otherwise agreed, Practice Sense shall not be responsible for retaining any of Your Content after account termination or for archiving purposes. You acknowledge that all Client Content may be deleted by Practice Sense after the account is terminated, subject to the terms of this Agreement and/or any termination or transition of Services Agreement the parties may enter.
13. Service Availability.
Practice Sense will use commercially reasonable efforts to provide Client access to selected Services with a Monthly Uptime Percentage, as defined in the then applicable Service Level Agreement, during any monthly billing cycle (the “Service Commitment”). In the event Practice Sense does not meet the Service Commitment in effect at the time of any outage you will be eligible to receive a Service Credit as described in the Service Level Agreement
You may submit questions or comments to Practice Sense from time to time. Practice Sense reserves the right to use in whole or part the content any such questions or comments and all such communications, comments, feedback, suggestions, ideas, and other submissions related to the Software or Services submitted to Practice Sense, excluding your Confidential Information (collectively, “Submissions”) will become and shall thereafter remain Practice Sense’s property, and all worldwide right, title, and interest in all copyrights and other intellectual property in all Submissions are assigned (and in the future deemed to be assigned) by You to Practice Sense.
You may use Practice Sense Confidential Information solely in connection with Your use of Services, as permitted under this Agreement, and will not disclose any Practice Sense Confidential Information at any time. Both parties will hold in strict confidence and not use or disclose to any third party any Confidential Information of the other party, other than as permitted by this Agreement. Each party will take all reasonable measures to avoid disclosure or unauthorized use of Confidential Information, but in no event less than a reasonable degree of care. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Services.
16. Compliance with Applicable Law.
You agree (i) not to use the Software or Services for any illegal purposes and (ii) to comply with all applicable local, state, national, and international laws and regulations, including without limitation laws relating to recording conversations, privacy, and data protection and public displays or performances, and United States export laws and regulations regarding the transmission of technical data exported from the United States through the Software or Services. You further agree that this Agreement does not require Practice Sense or any of the Affiliated Entities to exercise any right or remedy in order to benefit or protect anyone, although Practice Sense reserves the right to do so in its sole discretion.
17. Acceptable Use Policy.
You agree to abide by Practice Sense’s Acceptable Use Policy, (the “Acceptable Use Policy” or “AUP”), as modified from time to time at the bottom of this page , and not to use, promote aid or direct others to use the Services in conflict with the Acceptable Use Policy or this Agreement. The Software and Services are not designed or intended for use in any situation where failure or fault of any kind of the Software or Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (collectively, “High-Risk Use”). You may not use the Software or Services in, or in conjunction with High-Risk Use, which is strictly prohibited. We reserve the right, but assume no obligation, to investigate any violation of our Acceptable Use Policy or any misuse of the Services. You acknowledge that we may report to appropriate law enforcement officials, regulators, or other appropriate third parties any activity we suspect violates any law or regulation. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties, as requested, by providing network and systems information related to alleged violations of this Policy.
18. Business Continuity.
In the event that Practice Sense is unable to continue providing the Services to You, Practice Sense will provide access to the most current data set, as well as all necessary information, including application settings and utilities, in order to facilitate a transition of Services by You to another provider or in-house implementation. Upon termination, Practice Sense will, to the extent possible, provide You at reasonable cost in accordance with industry pricing a current copy of Your data; provided that you are at such time in good standing in all then current fees and charges and Practice Sense receives written request from You for a copy of Your data no later than 30 days after termination (the “Termination Transition Period”). Practice Sense will provide the same data backups and settings regardless of which party terminates this Agreement or the reason for termination, and each party will reasonably cooperate to effect a timely and orderly transition of services, if applicable, to any designated third party identified by You in writing to Practice Sense within the Termination Transition Period.
You agree to defend, indemnify, and hold harmless Practice Sense from and against any and all claims and liabilities (including, but not limited to, fees, costs and other reasonable expenses of attorneys and expert witnesses, but excluding any loss, liabilities, costs, damages or other expenses attributable solely to Practice Sense’s negligent acts/omissions or willful misconduct) made by any third party related to or arising from: (i) Your use of the Software or Services (including without limitation, any User or person accessing the Services using Your password or access key with or without Your permission), (ii) any actual or alleged violation of this Agreement or applicable law, and/or (iii) any actual or alleged infringement or violation (by You or any User or person accessing the Services using Your password or access key with or without Your permission) of any intellectual property or privacy or other right of any person or entity. Notwithstanding the foregoing Your potential indemnification liability shall exclude, to the extent permitted by applicable state, federal or international laws, any special, incidental, punitive or consequential damages to Practice Sense or its Affiliates other than those arising from or related to Your negligent or willful: (x) misappropriation of Content or trade secrets; (y) actual or alleged infringement of a third party’s intellectual property rights; or (z) breach of the confidentiality obligations provided.
20. DISCLAIMER OF WARRANTIES.
ALL SOFTWARE AND SERVICES ARE PROVIDED AS IS AND WITH ALL FAULTS AND WITHOUT ANY WARRANTY BEYOND THE SOLE AND LIMITED WARRANTY THAT SERVICES WILL PERFORM SUBSTANTIALLY AS DESCRIBED IN APPLICABLE PRACTICE SENSE USER DOCUMENTATION. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION EACH OF PRACTICE SENSE AND THE AFFILIATED ENTITIES HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, UNLESS PROHIBITED BY LAW, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OR OF WORKMANLIKE EFFORT. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE AND/OR SERVICES WILL BE FREE OF HARMFUL ASPECTS.
21. NO LIABILITY FOR CONTENT.
YOU AGREE THAT PRACTICE SENSE AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY CONTENT, INCLUDING BUT NOT LIMITED TO CONTENT THAT IS SENT, RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT TO THE SOFTWARE OR SERVICES, CONTENT THAT IS UPLOADED OR DOWNLOADED BUT NOT RECEIVED, AND CONTENT SENT USING AND/OR INCLUDED IN THE SERVICES, INCLUDING WITHOUT LIMITATION ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT; FURTHER, YOU AGREE THAT PRACTICE Sense AND THE AFFILIATED ENTITIES WILL NOT BE LIABLE FOR ANY ACCESS TO OR ALTERATION OF SUCH CONTENT OR FOR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING PRIVACY, INTELLECTUAL PROPERTY, OR DATA PROTECTION RIGHTS ARISING FROM SUCH CLIENT CONTENT OR FROM THE CONDUCT OF CLIENT OR THIRD PARTIES OTHER THAN WHICH MAY BE THE RESULT OF PRACTICE SENSE’S WILLFUL ACTIONS.
22. EXCLUSION OF CERTAIN DAMAGES.
UNLESS PROHIBITED BY LAW, YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY AND CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR GOODWILL; DAMAGES FOR LOSS OF CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, OR FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN THE DIRECT DAMAGES DESCRIBED IN SECTION 22 BELOW. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, DAMAGES OR REIMBURSEMENT ARISING FROM OR IN CONNECTION WITH: YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT RESULTING FROM YOUR ACTIONS OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER ANY SLA, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (IV) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (V) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, OR (VI) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT THAT PRACTICE SENSE OR ANY OF THE AFFILIATED ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
23. LIMITATION ON LIABILITY.
PRACTICE SENSE SHALL NOT BE LIABLE FOR ANY DAMAGES EXCEPT FOR DIRECT DAMAGES ACTUALLY INCURRED BY YOU UP TO THE GREATER OF THE AMOUNT OF THE PRICE THAT YOU ACTUALLY PAID FOR THE SERVICES THAT GIVE RISE TO YOUR CLAIM DURING THE PRECEDING 12 MONTHS OR ONE DOLLAR (US $1.00), REGARDLESS OF THE FORM OF ACTION OR CLAIM.
In addition to any payment obligations arising prior to termination, the following sections will survive any termination of this Agreement: Sections 1, 3-4, 7-14, and 17-31.
25. Governing Law; Exclusive Forum; Jurisdiction.
This Agreement and all causes of action related to the Software or Services will be governed by and construed in accordance with the laws of the state of California and the United States of America, without giving effect to its conflict-of-laws principles that would require application of the laws of a different state or jurisdiction. Any dispute relating in any way to the Services or this Agreement where a party seeks relief of $7,500 or more will be adjudicated in any state or federal court in San Diego County, California. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief, at law or equity, in any state, federal, or other court of competent jurisdiction for any actual or alleged infringement or misappropriation of our, our Affiliates, or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Unless otherwise prohibited by applicable law, You agree that any claim or cause of action arising out of or related to this Agreement must be commenced by You within one (1) year after the cause of action arose.
26. Miscellaneous; Severability.
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. Practice Sense’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by Practice Sense in a writing signed by a duly authorized officer of Practice Sense.
27. Force Majeure.
Practice Sense and its Affiliated Entities will not be liable for non-performance or delay in performance caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, acts of terrorism, national emergency, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, any act of God, or any other event of a similar nature.
28. Third Party Beneficiaries; Assignment.
The Affiliated Entities are third party beneficiaries to this Agreement. There are no other third party beneficiaries to this Agreement. No party may assign or otherwise transfer this Agreement, or any rights or obligations hereunder, whether by contract, operation of law, or otherwise without the express written consent of the other party to the Agreement, except that Practice Sense may assign or otherwise transfer this Agreement, any of its rights or obligations under this Agreement, and/or any Content provided to Practice Sense pursuant to this Agreement, to one (1) or more of the Affiliated Entities, or by way of merger, acquisition or sale of all or substantially all of its assets to any third party or Affiliated Entity or as part of a corporate reorganization, without Your consent. This Agreement will be binding on and inure to the benefit of Practice Sense and Client and their respective permitted successors and permitted assigns.
29. Export Restrictions.
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software and Services. Without limiting the foregoing, You acknowledge that the Software and Services are or may be an encryption item subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You agree not to export or re-export the Software or Services in any form in violation of the export laws of the United States or any foreign jurisdiction. You will defend, indemnify, and hold Practice Sense and the Affiliated Entities harmless from and against any violation of such laws or regulations.
30. Entire Agreement.
The Agreement, including any additional document incorporated by reference, constitutes the entire agreement of the parties with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between Practice Sense and You regarding them. Practice Sense’s performance of this Agreement is subject to existing laws and legal process, and You agree that Practice Sense may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term of this Agreement or that policy. A printed or electronic version of this Agreement and of any notice given to You in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
31. Modifications to this Agreement.
SERVICE LEVEL AGREEMENT
Last Updated: April 10, 2074
This Service Level Agreement (“SLA”) governs the Service Commitment associated with Your use of Practice Sense Services under the terms of the Agreement in place between You and Practice Sense, and is subject to the terms of the Agreement. We reserve the right to modify the terms of this SLA as provided in the Agreement.
Practice Sense will use commercially reasonable efforts to meet the Service Commitment for Your Services to provide a “Service Availability” with a Monthly Uptime Percentage of at least 99.99% during any monthly billing cycle. In the event Practice Sense does not, subject the following exclusions/exceptions, meet this Service Commitment, you will be eligible to receive a Service Credit, as described below. Practice Sense bases our reputation in providing reliable services and in delivering the highest levels of customer service. As a result, in the event of any Service Unavailability we will endeavor to err on the side of resolving any Service Availability in Your favor.
For purposes of SLA Credits, the “Monthly Uptime Percentage” is the total number of minutes in a calendar month, at 100% divided by the total number of minutes during the applicable billing month in which Practice Sense Services were in a state of “Unavailability” for Your Services. Monthly Uptime Percentage measurements exclude Unavailability resulting directly or indirectly from any SLA Exclusion (as provided above).
“Unavailability” or “Unavailable” shall mean any period of time when You or Your Users are unable to read or write to a Practice Sense Services for which You have appropriate permissions.
A “Service Credit” is a credit, calculated as set forth below, that we may credit back to Your account for the next billing cycle as a monetary credit:
|Service Availability||Credit Percentage|
|99.99 to 100.000%||0%|
|98.000% to 99.989%||10%|
|95.000% to 97.999%||25%|
|90.000% to 94.999%||50%|
|89.999% or below||100%|
You will not receive any credits under this Agreement in connection with any failure or deficiency of Service Availability or the Monthly Uptime Percentage caused by, in whole or in part, or associated with the following, collectively, the “SLA Exclusions”:
· A suspension or termination of Your Services or Account as provided in AWS Agreement;
· Factors outside of our reasonable control, including any Force Majeure event or Internet access or related problems beyond the demarcation point of Practice Sense’s systems, unless such failure is caused solely by Practice Sense;
· Any actions or inactions by you or any third party, including but not limited to failures: from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control);
- Scheduled maintenance and emergency maintenance and upgrades;
· Your acts or omissions (or acts or omissions of others engaged or authorized by You and/or under Your control or direction) including, without limitation, any negligence, willful misconduct, use of the Services in breach of this Agreement, or network or other technical/non-technical issues in the primary control of Client; or
· Outages elsewhere on the Internet that hinder access to Your account (provided that the foregoing shall not relieve Practice Sense of its obligations under this SLA or the Agreement).
You must be in good standing and make a written request by sending an e-mail message to [email protected] including the dates and times of the Unavailability of the Services as the nature of the Unavailability. Your request must be received by Practice Sense within ten (10) business days after the end of Unavailability in question. Upon Practice Sense’s reasonable investigation and confirmation of Unavailability of the Services, Practice Sense will apply Service Credits against the next billing cycle following receipt of your credit request. Service Credits are not refundable or transferrable and can be used only towards outstanding or future billing charges. Notwithstanding anything to the contrary herein, the total amount credited to a Client in a particular month under this SLA shall not exceed the total hosting fee paid by Client for such month for affected Services.
PRACTICE SENSE ACCEPTABLE USE POLICY
Practice Sense does not normally monitor the stored content or transmissions of its Clients, however, as we must be able to respond to legitimate legal requests and actions by governmental authorities, affected parties, and other Internet Service Providers. In response, Practice Sense has adopted this “Acceptable Use Policy” (“AUP”) in an attempt to balance interference or risk of harm arising from its Clients’ use of Practice Sense’s services (the “Services”) with the interests of those who may be affected by such use. Because the rules in this area are in a state of development, this AUP may change from time to time; any such changes will be posted at this site. It is the responsibility of Clients to periodically check this site for updates to this AUP. A Client’s continuing use of the Practice Sense Services after the posting of such changes shall signify such Client’s continuing agreement to this AUP and to any such changes. This AUP is part of, and is incorporated by reference into, the Practice Sense Terms of Service. Practice Sense prohibits use of its Services in any manner that is unlawful, interferes with use of Practice Sense’s network or the Internet, infringes intellectual property, privacy, or other rights of Practice Sense or third parties, results in the publication of threatening or offensive material, constitutes spam, or presents other security or privacy risks.
2. AUP Coverage.
The AUP applies to all Clients of Practice Sense’s Services, whether using paid Services or any free trial or other unpaid offerings, and to all individuals affiliated with Clients accessing or using the Practice Sense Services or accessing or using the Practice Sense Services for or on behalf of Clients (“Users”). If a Client violates the AUP or permits its Users to do so, Practice Sense may, depending on the nature and severity of the violation, suspend or terminate Services, as provided below. Alternatively, if a User violates the AUP, Practice Sense may suspend service for so long as necessary for steps to be taken which, in Practice Sense’s reasonable and sole discretion and judgment, shall prevent the violation from continuing or reoccurring.
When feasible, Practice Sense will provide you with written notice via e-mail or otherwise of an AUP violation so that such violation may be corrected without impact on the Services. Practice Sense reserves the right, however, to act immediately and without notice to suspend or terminate the Services, up and including your account, if necessary, in response to a court order or law enforcement request, or when Practice Sense reasonably determines (1) that it may be exposed to sanctions or prosecution, (2) that such violation may cause harm to or interfere with the integrity or normal operations or security of Practice Sense’s network or networks with which Practice Sense is interconnected or interfere with another Client’s use of Practice Sense Services or the Internet; or (3) that such violation otherwise presents imminent risk of harm to Practice Sense or Practice Sense’s Clients or their respective employees. Except as provided above, to the extent allowed by law, Practice Sense will use reasonable efforts to provide at least five (5) business days’ notice before suspending or terminating service.
4. Unlawful Activities.
Practice Sense prohibits use of its Services in connection with any criminal activity or any violation of any applicable local, state, provincial, federal, national or international laws, treaties, court orders, ordinances, regulations or administrative rules.
Practice Sense prohibits use of its Services in any manner that materially interferes with any communications network or the usage of services received by others.
6. Intellectual Property.
Practice Sense prohibits use of its Services to transmit, re-transmit, or store any content or to engage in any activity that infringes the intellectual property rights or privacy rights of Practice Sense or any third party (including but not limited to any rights protected by any copyright, patent, trademark, trade secret, trade dress, right of privacy, moral rights or other intellectual property right). While Practice Sense reserves the right to restrict any actions alleged to violate such rights, Practice Sense affirmatively has no obligation to police any activities in connection.
7. Offensive or Threatening Material or Content.
Practice Sense prohibits use of its Services to host, post, transmit, or re-transmit any content or material that is threatening, harassing, obscene, pornographic, racist, defamatory, libelous, treasonous, or that promotes the use of violence, that provides instruction, information or assistance in causing or carrying out violence against any organization, group or individual, or that provides guidance, information or assistance with respect to causing damage or security breaches to Practice Sense’s network or to the network of any other service provider.
8. E-mail Abuse and Unsolicited Bulk Email (“spam”).
Practice Sense prohibits use of its Services for the sending of any form of unsolicited bulk email. Clients and Users may not use Practice Sense Services to solicit Clients from, or collect replies to, messages sent from another Internet Service Provider where those messages violate this Policy or that of the other provider.
9. Security Violations.
Practice Sense prohibits use of its Services to interfere with, to gain unauthorized access to, or otherwise violate the security of Practice Sense’s or another’s server, network, personal computer, network access or control devices, software or data, or other system, or to attempt to do any of the foregoing.
10. Client Responsibilities.
You remain solely and fully responsible for your Content and for maintaining the basic security of the systems utilized by and on your behalf to access Practice Sense and Services, including implementation of necessary patches and operating systems updates, to prevent use by others in a manner that violates this AUP. Clients are responsible for taking corrective actions on vulnerable or exploited accounts to prevent abuse.
11. Incident Reporting.
Any complaints (other than claims of copyright or trademark infringement) regarding the violation of this AUP by a Practice Sense Client or User should be directed to [email protected] Where possible, include details that would assist Practice Sense in investigating and resolving the complaint (i.e. expanded headers and a copy of the offending transmission).