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SECTION 1: TERMS
The Terms of Service Agreement ("Agreement") is entered into by and between Supervisor ProTools, an ("COMPANY"), and the clients of COMPANY, including the acceptor of this Agreement ("SUBSCRIBER"), and is effective as of the date this Agreement is accepted ("Effective Date"). COMPANY may make changes to the Services (as defined below) at any time. In addition, COMPANY may make changes to this Agreement at any time by posting the modified Agreement on COMPANY's website. Other than as limited by applicable law, SUBSCRIBER's continued use of the Services after such changes have been posted is deemed acceptance of any such changes. In consideration of the exchange of promises and covenants contained in this Agreement and other good and valuable consideration, the adequacy and sufficiency of such consideration the parties acknowledge, the parties agree as follows:
SECTION 2: SERVICES
SUBSCRIBER will receive from COMPANY, and COMPANY will provide to SUBSCRIBER, the billing and documentation services described on the COMPANY's website, www.SupervisorProTools.com, (the "Services"). COMPANY, from time to time, may modify, upgrade or otherwise change the manner in which the Services are provided including, but not limited to, the hardware, software, features or environment, so long as such Services are substantially comparable or superior as such Services relate to functionality and reliability as compared to the prior Services being otherwise changed.
Subject to SUBSCRIBER's compliance with the terms and conditions contained in this Agreement, COMPANY hereby grants to SUBSCRIBER, during the term of this Agreement, a limited, revocable, non-transferable, non-sublicensable, non-exclusive right for its authorized users to access and use the Services in accordance with COMPANY's applicable documentation solely for SUBSCRIBER's internal business purposes and not for the benefit of any other person or entity
SECTION 3: TERM AND TERMINATION
This Agreement shall be valid as of the Effective Date for a one-month period or whatever period has been agreed upon by COMPANY and SUBSCRIBER that shall be automatically renewed thereafter for successive monthly (or other) periods (the " Subscription Term") , unless either party gives written notice to the other party of non-renewal at least 30 days prior to expiration of the then current Subscription Term.
COMPANY may, without prior notice, suspend or terminate SUBSCRIBER's or any other user's password, account or use of any of the Services, and/or remove and discard, alter or prevent access to any content within the Services, if COMPANY in its sole discretion determines or discovers that SUBSCRIBER violated any provision of this Agreement. Upon suspension or termination of this Agreement, SUBSCRIBER must pay all fees to the date of termination as provided herein. Following termination, the provisions of the following sections shall survive: Term and Termination, Conduct of Users, COMPANY's Limited Warranty, Personal Information, Security, Proprietary Rights, Third Party Dealings, Disclaimers and Limitations, Ownership of Data, Unlawful Use, Defamatory or Abusive Material, Unauthorized Access, Other Activities, Editorial Content, Governing Law and Venue and General Provisions.
SECTION 4: CONDUCT OF USERS
The Services may be used only by SUBSCRIBER, its authorized users and its authorized agents, including affiliates, joint venture partners, licensees and subsidiaries. As more fully discussed in the Security section of this Agreement, SUBSCRIBER is solely responsible for maintaining the security of its user name(s) and password(s). Any use of SUBSCRIBER's user name(s) and/or password(s) shall be deemed as authorized by SUBSCRIBER, unless SUBSCRIBER provides advance written notice to COMPANY that its user name(s) and/or password(s) have been compromised. SUBSCRIBER acknowledges and agrees that any act or omission of its users in connection with use of, or access to the Services, which act or omission would constitute a breach of this Agreement if undertaken by SUBSCRIBER, shall be considered a breach by SUBSCRIBER hereunder. SUBSCRIBER and its authorized users of the services may use the Services only as long as SUBSCRIBER and SUBSCRIBER's authorized users comply with the terms of this Agreement. COMPANY may amend or supplement this Agreement from time to time, and any amended or supplemented terms shall be posted by hyperlink to COMPANY's homepage, which posting shall be deemed reasonable and adequate notice to SUBSCRIBER and SUBSCRIBER's authorized users of the amended or supplemented terms other than as may be limited by applicable law.
SECTION 5: COMPANY's LIMITED WARRANTY
COMPANY REPRESENTS AND WARRANTS TO SUBSCRIBER THAT THE SERVICES WILL BE PERFORMED IN COMPLIANCE WITH ANY SPECIFICATIONS AND REQUIREMENTS SET FORTH IN THIS AGREEMENT. SUBSCRIBER SHALL NOTIFY COMPANY IN WRITING WITHIN 30 CALENDAR DAYS AFTER PERFORMANCE OF ANY SERVICES IF SUCH SERVICES DO NOT CONFORM TO THE FOREGOING WARRANTIES. IF SUBSCRIBER FAILS TO PROVIDE TIMELY WRITTEN NOTICE TO COMPANY, THE SERVICES WILL BE DEEMED TO BE IN COMPLIANCE WITH THE FOREGOING WARRANTIES. SUBSCRIBER'S EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTIES SHALL BE FOR COMPANY, AT ITS OPTION, TO RE-PERFORM THE SERVICES AT NO COST TO SUBSCRIBER, OR, IN THE EVENT OF INTERRUPTION OF THE SERVICES, ISSUE SUBSCRIBER A CREDIT IN AN AMOUNT EQUAL TO THE SERVICES CHARGE FOR THE INTERRUPTED PERIOD.
THE FOREGOING WARRANTIES SHALL NOT APPLY TO PERFORMANCE ISSUES OR DEFECTS IN THE SERVICES THAT RESULTED FROM FACTORS OUTSIDE OF COMPANY'S REASONABLE CONTROL; THAT RESULTED FROM ANY ACTIONS OR INACTIONS OF SUBSCRIBER OR ITS AUTHORIZED USERS; OR THAT RESULTED FROM SUBSCRIBER'S EQUIPMENT OR ANY THIRD PARTIES' EQUIPMENT NOT WITHIN THE CONTROL OF COMPANY.
SECTION 6: PERSONAL INFORMATION
SUBSCRIBER agrees to provide true, accurate and complete information about itself and its authorized users of the Services. Company shall treat all personally identifiable information, including patient health information, in accordance with its Privacy Policy. SUBSCRIBER consents to such Privacy Policy.
SECTION 7: INFORMATION SECURITY
SUBSCRIBER agrees to keep secure and confidential any user name COMPANY issues to SUBSCRIBER, and any password (whether issued by COMPANY to SUBSCRIBER or created by SUBSCRIBER). SUBSCRIBER will be fully responsible for all activity that occurs under the use of SUBSCRIBER's user name or password. SUBSCRIBER agrees to immediately notify COMPANY in writing of any unauthorized use of SUBSCRIBER's user name or password. SUBSCRIBER will use commercially reasonable efforts to protect the security of the Services, and will comply with HIPAA and other laws applicable to the security of patient data in using the Services. COMPANY does not warrant or guarantee the integrity or the security of the Services or of the content, information or data transmitted through or contained within any portion of the Services.
SECTION 8: PROPRIETARY RIGHTS
COMPANY owns or has authority to use any and all rights pertaining to: (a) the content contained in or presented through the Services by COMPANY or by third parties engaged by COMPANY (including, without limitation, text, music, sound, photographs, graphics, video, page layout, Editorial Content (defined below), and design), (b) the software, hardware, files, processes, systems, databases and tools used or provided to SUBSCRIBER by COMPANY or by third parties engaged by COMPANY to provide the Services, (c) other tangible and intangible personal property relating to the Services, and (d) the trade names, trademarks, service marks, copyrights, patents, inventions, trade secrets, know-how and other intellectual property rights relating to the foregoing (sections (a), (b), (c), and (d) in this Proprietary Rights section shall collectively be referred to as "COMPANY Property").
SUBSCRIBER is prohibited from publishing, distributing via the Internet or any other public computer based information system, creating derivative works (including translating), transferring, selling, leasing, licensing, or otherwise making available to any unauthorized party COMPANY Property.
SUBSCRIBER is granted the right to use that portion, and only that portion, of COMPANY Property that is contemplated in this Agreement. SUBSCRIBER will not copy, revise, alter, modify, decompile, reverse engineer, assemble, or attempt to discover, nor sell, assign, sublicense, encumber, or otherwise transfer any interest in any COMPANY Property, including, without limitation, any object code, source code, underlying processes or algorithms contained therein, other than as is permitted by COMPANY in writing, and SUBSCRIBER will not permit any person or entity to commit or engage in such activities or conduct. SUBSCRIBER acknowledges that any violation of this Proprietary Rights section imposes a serious threat to COMPANY's business and its ability to exist.
U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (November 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (December 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (December 2007) and FAR 52.227-19 (December 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.
SECTION 9: THIRD PARTY DEALINGS
If SUBSCRIBER acquires goods or services from a third party, whether or not the goods or services are used as part of the Services, SUBSCRIBER agrees that its business dealings with that third party are solely between SUBSCRIBER and the third party. COMPANY has no liability for any reason in any way arising from SUBSCRIBER's relationship with such third parties or the goods or services acquired, including, without limitation, complaints or claims concerning failure to perform, defects in goods or services or otherwise.
Links to other websites or resources may be provided by COMPANY or third parties as part of the Services. SUBSCRIBER agrees that COMPANY has no control over such other websites or resources, and is not responsible in any way for those other websites or resources including without limitation any content, advertising, products or material on or available from such other websites or resources.
SECTION 10: DISCLAIMERS AND LIMITATIONS
SUBJECT TO THE LIMITED WARRANTIES SET FORTH IN COMPANY'S LIMITED WARRANTY SECTION, SUBSCRIBER'S USE OF THE SERVICES AND ANY EQUIPMENT, SOFTWARE AND HARDWARE PROVIDED IN CONNECTION WITH THE SERVICES, IS ON AN "AS IS" BASIS. WHILE COMPANY WILL EXERCISE COMMERCIALLY REASONABLE BEST EFFORTS TO PROVIDE THE SERVICES, COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH RESPECT TO THE SERVICES OR SUCH PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER COMPANY NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING ANY OF THE SERVICES PROMISES, REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS OR OTHER PROPERTY THAT ARE USED IN PROVIDING THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COMPANY HEREBY SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY INACCURACY, ILLEGALITY, AND/OR INAPPROPRIATENESS OF ANY CONTENT PROVIDED TO ANY WEBSITE OR ANY PUBLIC AREA, ANY DAMAGE, DESTRUCTION OR CORRUPTION OF ANY CONTENT OR OTHER DATA, OR ANY USE OR MISUSE OF, OR INABILITY TO USE, THE SERVICES BY ANY PERSON OR ENTITY.
IN NO EVENT WILL COMPANY NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING ANY OF THE SERVICES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSSES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES. COMPANY'S MAXIMUM LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT OR THE SERVICES WILL BE LIMITED TO THE AMOUNT OF FEES PAID BY SUBSCRIBER TO COMPANY UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PERIOD IMMEDIATELY PRIOR TO WHEN ANY CLAIM OR CAUSE OF ACTION AROSE.
SUBSCRIBER agrees that any claim or cause of action which SUBSCRIBER may have arising out of a claim related to this Agreement or the Services must be filed within one (1) year after such claim or cause of action arises, or the claim or cause of action will forever be barred
Each party must provide written notice to the other party at least thirty (30) calendar days prior to filing or otherwise initiating any action, charge or lawsuit against the other. The written notice must describe the factual basis for the dispute, and provide at least thirty (30) calendar days for the receiving party to remedy, cure or otherwise resolve the matters stated in the notice.
COMPANY will not be liable for failure or delay in performing the Services or other obligations under this Agreement if the failure or delay is due to circumstances beyond COMPANY's control including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunication or third party services (including DNS propagation), failure of third party software or hardware, or inability to obtain raw materials, supplies, or power used in equipment needed for the provision of the Services.
SECTION 11: OWNERSHIP OF DATA
COMPANY agrees that SUBSCRIBER's documents are the exclusive property of SUBSCRIBER. Upon the request of SUBSCRIBER at termination of this Agreement, COMPANY shall transmit to SUBSCRIBER a copy of SUBSCRIBER's documents, subject to reasonable reproduction and distribution fees to be paid by SUBSCRIBER to COMPANY. SUBSCRIBER grants to COMPANY a non-exclusive, perpetual, irrevocable, royalty-free right and license to use, process, and store any documents, material, data or other content submitted by SUBSCRIBER in accordance with the terms of this Agreement. SUBSCRIBER represents and warrants that SUBSCRIBER has all necessary rights, approvals, and consents to provide such content to COMPANY and grant the rights set forth above.
Notwithstanding anything else in this Agreement or otherwise, COMPANY may monitor SUBSCRIBER's use of the Services and use data and information related to such use, and SUBSCRIBER Content in an aggregate manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between COMPANY and SUBSCRIBER, all right, title, and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by COMPANY. SUBSCRIBER acknowledges that COMPANY will be compiling Aggregated Statistics based on SUBSCRIBER Content input into the Services and SUBSCRIBER agrees that COMPANY may (a) make such Aggregated Statistics available to third parties in an anonymous manner, and (b) use such information to the extent and manner required by applicable law or regulation and for purposes of data gathering, analysis and service enhancement, provided that such data and information will be used in accordance with COMPANY's privacy policies and confidentiality terms of this Agreement. Aggregated Statistics will be used for such purposes as to improve SUBSCRIBER's clinical outcomes and to establish the efficacy of SUBSCRIBER's Services
SECTION 12: UNLAWFUL USE
SUBSCRIBER or any of its users shall not upload, transmit or post any content, or engage in any other use of the Services that violates any law, rule or regulation, defames or libels any other person or entity, infringes any other person's or entity's rights, including, without limitation, any intellectual property or privacy rights, or otherwise could impose civil or criminal liability. COMPANY reserves the right to notify any governmental entity, law enforcement authority, or any other party that it deems appropriate in its sole discretion, of any such activity. Uploading, posting or transmitting any content that infringes any patent, trademark, trade secret, copyright, publicity or proprietary right of any person or entity will be grounds for immediate termination of the Services or other corrective action.
SECTION 13: DEFAMATORY OR ABUSIVE MATERIAL
SUBSCRIBER or any of its users shall not upload defamatory, obscene, profane, vulgar, threatening, offensive, abusive, inaccurate or illegal material.
SECTION 14: UNAUTHORIZED ACCESS
SUBSCRIBER or any of its users shall not access, or attempt to access, another person's or entity's accounts without proper authorization to do so, or attempt to disrupt or interfere with the Services in any manner. Each of SUBSCRIBER and any of its users, must register and maintain a valid email address with COMPANY in order to receive system notifications.
SECTION 15: USE AND DATA STORAGE
COMPANY may establish and change from time to time general practices and limits on the use of the Services, the amount of central processing unit (CPU) processing, bandwidth and disk usage, and levels of activity.
COMPANY will use commercially reasonable efforts to provide all SUBSCRIBERS with advance notice of these practices and limits. Violation of these practices and limits will be considered a violation of this Agreement.
SECTION 16: OTHER ACTIVITIES
SUBSCRIBER or any of its users shall not engage in any other activity that COMPANY determines in its sole discretion may be harmful to other users or the Services.
COMPANY does not in the ordinary course pre-screen or monitor content of the database or any other communications. However, COMPANY reserves the right, but does not assume any obligation, to determine in its sole discretion what is and is not acceptable content in connection with the Services, to limit placement of any content in a database or on any other area provided in connection with the Services, to use commercially reasonable efforts to remove, alter or block access to any offensive, objectionable, or unacceptable content immediately and without prior notice, to determine in its sole discretion what is and is not an appropriate conduct and use of any of the Services, and to cease providing or bar access to any or all of the Services to any user at any time, for any reason or for no reason, without prior notice. COMPANY reserves the right, but does not assume any obligation, to monitor and investigate complaints regarding any of the foregoing, and SUBSCRIBER agrees to grant COMPANY access to SUBSCRIBER's account at any time without notice, and to cooperate fully with COMPANY in providing access and information as may be requested at any time and from time to time. SUBSCRIBER agrees that any reservation of rights by COMPANY imposes no obligation of any kind on COMPANY to take any of the foregoing actions.
SECTION 17: INDEMNIFICATION
SUBSCRIBER agrees to indemnify and hold COMPANY (as well as its parents, subsidiaries, affiliates, officers, members, shareholders, employees, agents and representatives) harmless from any and all claims, liability and expenses (including without limitation, reasonable attorneys' fees) arising out of or related to SUBSCRIBER's use of the Services (unless the claim directly relates to COMPANY's misconduct), SUBSCRIBER's breach of any provision of this Agreement, or any claim arising out of content posted or transmitted by any person or entity associated with or authorized by SUBSCRIBER (other than COMPANY) through the use of the Services. COMPANY reserves the right, to select counsel of its own choosing for and otherwise to control its own defense, at SUBSCRIBER's expense, of any matter subject to indemnification by SUBSCRIBER, which shall not excuse SUBSCRIBER's indemnity obligations.
SECTION 18: GOVERNING LAW AND VENUE
This Agreement is entered into in the state of Massachusetts. This Agreement and any rights, remedies, or obligations provided for in this Agreement shall be construed and enforced in accordance with the laws of the state of Massachusetts without regard to the conflicts provisions thereof. Any and all disputes that in any way arise out of or bear any relationship with this Agreement shall be litigated only in courts having sites in Boston, Massachusetts.
SUBSCRIBER will pay COMPANY all costs and expenses, including reasonable attorney's fees, incurred by COMPANY in enforcing any of the terms, conditions and provisions in this Agreement, including any of COMPANY's rights and remedies set forth in this Agreement.
SECTION 19: CHANGE OF CONTROL TRANSACTION
COMPANY may assign this Agreement, without prior to notice to SUBSCRIBER, and SUBSCRIBER hereby consents to the assignment of this Agreement in connection with any change in control or merger of COMPANY or sale, transfer or other disposition of all or substantially all of COMPANY's assets (a "Change of Control Transaction"). In the event of any such Change of Control Transaction, COMPANY may also assign and transfer, and SUBSCRIBER hereby consents to the assignment and transfer of, any related Business Associate Agreements entered into with SUBSCRIBER pursuant to HIPAA requirements and all SUBSCRIBER data (including, without limitation, protected health information under HIPAA, Confidential Information (as defined above) and all other SUBSCRIBER data and information related to the Services) (collectively, the "Transferred Information") in connection therewith, provided, however, that SUBSCRIBER shall, promptly after the consummation of any such Change of Control Transaction, receive written notice thereof and an opportunity to enter into a new Business Associate Agreement with COMPANY's successor ("Successor") or terminate the Services, and provided, further, that the Successor is under a duty to maintain the confidence of the Transferred Information no less strict than that of the Company.
SECTION 20: GENERAL PROVISIONS
This Agreement and set forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. If any portion, provision, or part of this Agreement is held, determined, or adjudicated to be invalid, unenforceable or void for any reason whatsoever, each such portion, provision or part shall be severed from the remaining portions, provisions or parts of this Agreement and shall not affect the validity or enforceability of any remaining portions, provisions or parts. No waiver of any breach or failure or delay in exercising any right, power or remedy of any provision of this Agreement shall constitute a waiver of the same or any other provision hereof with respect to prior, concurrent or subsequent occurrences. No waiver shall be effective unless made in writing and signed by an authorized representative of the party against whom such waiver is sought. Titles and headings are included solely for convenient reference and are not part of this Agreement. SUBSCRIBER may not assign any of its rights or obligations (in whole or in part) without the prior written consent of COMPANY, which shall not be unreasonably withheld. Subject to the express exclusions and limitations set forth in this Agreement, all remedies set forth in this Agreement are cumulative and in addition to and not in lieu of any other remedies of any party at law or in equity. No person or entity is intended to be a third party beneficiary of any provision of this Agreement. The parties represent and warrant that they have full authority to execute and deliver this Agreement and to perform their obligations under this Agreement, and that the person whose signature appears below is duly authorized to enter into this Agreement on behalf of the party whom they represent.
By clicking I Agree below, you acknowledge that you have read, understand, and agree to be bound by the terms above. If you reject the terms, by clicking I do NOT agree then you will be denied access to the SupervisorProTools software.
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