IMPORTANT – PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF USE CAREFULLY. THIS TERMS OF USE AGREEMENT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.
THIS IS A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR ACCESS TO AND USE OF WWW.CONFIRMEDSOLUTIONS.COM, INCLUDING ANY CONTENT, FEATURE, FUNCTIONALITY OR SERVICES AT ANYTIME OR FROM TIME TO TIME OFFERED OR PROVIDED ON OR THROUGH THIS WEBSITE.
IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING TERMS AND CONDITIONS OF USE WITHOUT ANY MODIFICATION BY YOU, YOU ARE NOT AUTHORIZED TO AND MUST NOT ACCESS OR USE THIS SITE OR ANY FEATURE, FUNCTIONALITY OR SERVICE OFFERED ON OR THROUGH THIS SITE.
TERMS OF USE
Your use of the www.confirmedsolutions.com website (the “Website”) and any mobile application, software, and other related services (collectively, “Services”) provided by ConfirMED LLC (hereinafter referred to as “ConfirMED”, “Company”, “we”, “our”, or “us”), a Florida Limited Liability Company, or any third party designated by Company, is subject to the terms and conditions set out below (collectively, the “Terms of Use”). Your use of the Website and Services is also subject to our privacy policy, located at www.confirmedsolutions.com/privacy-policy (the “Privacy Policy”), which is hereby incorporated with the Terms of Use by this reference, and shall be subject to any other terms, policies, and guidelines that Company may adopt for the Services from time to time.
By using the Services in any manner, you agree to be legally bound by the following Terms:
1. THE SERVICES WE PROVIDE.
Company does not in any respect, directly or indirectly, offer or provide medical care or health care services. Rather, we offer and provide: (a) software as a service, whereby Registered Users may from time to time be provided with on line access to certain features or functionality of proprietary software applications owned by us. Such software applications may include: (i) medical procedure scheduling software; (ii) Electronic Health Records software; (iii) appointment calendar software; or (b) other on line administrative or business management services.
2. DEFINITIONS
2.1 As used in this Terms of Use, the following capitalized words or phrases, and those terms defined parenthetically in other provisions of these Terms of Use, have the meaning ascribed to them in this Section or in such other provision of this Terms of Use. Defined terms may be used in the singular or plural, as the context requires:
a. “Company Software” means any Company proprietary computer software comprising any part of the Services.
b. “Company Technology” means any of Company’s proprietary technology, including Company Software in any form (whether in object code, source code or otherwise), software tools, user interfaces, interface designs, algorithms, flow charts, architecture, libraries, objects, user manuals, or instructions, programmer manuals, developer notes and other related documentation (both printed and electronic), network designs or configurations, hardware designs or configurations, know-how, trade secrets and any Derivatives, improvements, enhancements or expansions of any of the foregoing conceived, reduced to practice or developed at any time and any Intellectual Property Rights therein or thereto (whether owned by Company or licensed to Company from a third party).
c. “Customer” means a hospital, ambulatory surgery center, health maintenance organization, preferred provider organization, professional corporation, association, limited liability company, or other Person who or which is engaged in the delivery or provision of health care or health care related services and who: has entered into an Agreement with us, the Term of which has not expired or otherwise been terminated, and with respect to whom or which we have therefore created an Account which is current and in good standing.
d. “Derivative” means with respect to copyrightable or copyrighted works of authorship, a derivative work thereof as defined under United States copyright laws; for patentable or patented subject matter, any improvement thereof or thereon; and for material which is protected as a trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent or as a trade secret.
e. “Electronic Health Record” or “EHR” means a collection of electronic health information about a patient that is recorded in digital format and capable of being shared across healthcare settings via network connected enterprise wide information systems and other information networks or exchanges. EHRs generally include patient demographics, medical procedures prescribed, physician information, physician notes, and medical record numbers.
f. “Firewall” means computer hardware and software that block unauthorized communications between a Person’s computer network and external networks.
g. “Host Server” means any Server(s) on which we have installed any Hosted Application for and in connection with the Services.
h. “Hosted Application” means any of our, or our respective third party licensors’ proprietary software application(s) installed on a Host Server, the on line access to and use of features or functionality of which may from time to time comprise, and be offered by us as part of the Services.
i. “Intellectual Property Rights” means any intellectual property rights which may exist or be created under the Laws of any country or other jurisdiction anywhere in the world, whether arising under statutory or common law or otherwise, and whether or not perfected, including, without limitation, all (i) patents and patent applications; (ii) industrial property rights; (iii) rights associated with works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications, mask work registrations; (iv) moral rights; (v) rights relating to the protection of trade secrets and confidential information; (vi) rights of privacy or publicity; (vii) rights associated with trademark, service mark, trade dress, or trade name, including any common law rights and any state or federal trademark or service mark applications or registrations; (viii), continuations, renewals, reissues and extensions of any of the foregoing whether in whole or in part(as and to the extent applicable) now existing, hereafter filed, issued or acquired; and (ix) any right analogous to those set forth in this definition; and (ix) any other proprietary rights relating to intangible property.
j. “Licensed Health Care Professional” means any individual medical doctor, osteopathic doctor, physician assistant, registered nurse, advanced registered nurse practitioner, psychologist, licensed clinical social worker, licensed mental health counselor, certified addiction professional, clinician of any kind, case manager, behavioral health professional, pharmacist, x-ray or MRI technologist, phlebotomist, optician, audiologist, certified nursing assistant, medical assistant, certified laboratory technician, emergency medical technician, occupational therapist, orthodontist, marriage and family therapist, speech or language pathologist, or any other individual health care practitioner who is duly licensed and in good standing as such under applicable Florida Law as well as under the applicable Laws of: (i) any jurisdiction in which such individual is physically located when utilizing the Website or any Service to communicate or interact with a Registered User for the purpose of, or otherwise in connection with, rendering health care or health care related services; and (ii) any jurisdiction in which such Registered User is physically located at such time(s).
k. “Person” means a natural person, a corporation (for profit or not for profit), an association, a partnership (general or limited), limited liability company, limited liability partnership, joint venture, trust, government or political department, subdivision or agency, or any other entity.
l. “Processing” of or to “Process” patient data (or any other data or materials) means any operation or set of operations that is performed upon patient data or other data or materials, and includes without limitation the following: access, collection, use, retention, copying, organization, viewing, reviewing, display, caching, storage, adaptation, modification, editing, printing, creating Derivative Works of, or alteration, retrieval, uploading, downloading, transmission, dissemination or otherwise making available.
m. “Protected Health Information” or PHI” has the meaning provided under that part of the HIPAA privacy rule that protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper or oral. The HIPAA privacy rule calls this information “protected health information (PHI)”. “Individually identifiable health information” is information, including demographic data, that relates to the individual’s past, present or future physical or mental health or condition, the provision of healthcare to the individual, or the past, present, of future payment for the provision of healthcare to the individual, and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. “Individually identifiable health information” includes common identifiers such as name, address, birth date, social security number. The HIPAA privacy rule excludes from PHI employment records that a covered entity maintains in its capacity as an employer, and education and certain other records subject to, or defined in, the Family Educational Rights and Privacy Act, 20 USC Section 1232g.
n. “Registered User” means an authorized User who has successfully registered on this Website for authorization to use the Services, with respect to which he or she has been issued a valid Registered User ID, for so long as his or her Registered User ID is in effect and has not been suspended or revoked.
o. “Registered User Data” means any image, data, compilation, text, work of authorship or other content, or file which under applicable Laws is owned by a Registered User or with respect to which a Registered User otherwise has all requisite Intellectual Property Rights or other proprietary interests, or has obtained all requisite third party permissions, consents and licenses, necessary for the Registered User, Company or its third party contractors to lawfully (and without Company or any of its third party contractors thereby becoming obligated to pay any royalty or other sums, or thereby infringing any Person’s Intellectual Property Rights or other proprietary rights), Process on, through or utilizing the Website or the Services.
p. q. r.
“Registered User ID’ has the meaning provided in Section 3.1(a).
“Registered User License” has the meaning provided in Subsection 3.3(a). “Server” means a computer or device on a network that manages system resources.
s. “Services” means the web based software as a service offerings provided or offered by us from time to time on or through the Website, which may consist of hosted services that provide Customers with access to features or functionality of Hosted Applications for purposes of enabling Customers to: (i) upload, download, send, or receive patient medical procedure data to or from a Host Server; or (ii) store, view, reproduce, display, edit, comment upon patient data; or (iii) any other services that we may offer or provide from time to time as part of, or in connection with, our hosted software as a service offerings, if and as applicable. “Services” does not include offering or provision of any health care services.
t. “System” means the Services, Company Software, Website, any feature, or functionality of or on the computers, Server(s) (including Host Servers), modems, routers, cables and any other equipment, devices, or connections provided by us, including any provided by us, to facilitate a Registered User’s online access to a Host Server and on line use of features or functionality of Hosted Applications over the Internet.
u. “Term” means the period of time commencing as of the effective date of our Agreement with the Company and continuing until the expiration or earlier termination of the term of that Agreement as expressly provided for therein.
v. “User Data” means any Registered User Data, or any other content, image, audio, video or other file, information, forms, documents, materials or data recorded, compiled, collected, uploaded to, downloaded from, stored or otherwise processed on, by or through, or otherwise utilizing the Website or the Services (or any other part of the System) in any respect relating to or in connection with, any Registered User or any Registered User’s access to or use of the Website or the Services or any other part of the System.
2.2 GENERAL RULES OF CONSTRUCTION.
a. For purposes of this Terms of Use: (i) whenever the context requires, the singular number shall include the plural, and vice versa; (ii) the masculine gender shall include the feminine and neuter genders; (iii) the feminine gender shall include the masculine; and (iv) neuter genders; and the neuter gender shall include the masculine and feminine genders;
b. any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Terms of Use;
c. as used in this Agreement: (i) the words “hereof”, “hereunder”, “herein” and words of similar import refer to this Terms of Use as a whole and not to any particular provision of this Terms of Use; (ii) the words “include” and “including”, and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation”; (iii) except as otherwise expressly indicated, all references in this Terms of Use to “Sections”, “Subsections”, “Paragraphs”, “Schedules”, “Exhibits” are intended to refer to sections, subsections or paragraphs of this Terms of Use; and (iv) the word “or” means “and/or”.
3. LIMITED LICENSE AND USE OF SERVICES
3.1 ACCOUNT REGISTRATION AND LOGIN CREDENTIALS. You represent and warrant to us that: (i) you are at least 18 years of age and possess the legal right and capacity to agree to be bound by, and to perform all of your obligations under this Terms of Use, and to use the Services in accordance with this Terms of Use and to abide by all of your obligations under this Terms of Use. As part of your use of the Services, you shall provide the Company, through the Website, with certain personal contact information. It is your responsibility to update the Company as promptly as possible with respect to any changes to your personal information, so that any records maintained by or through the Company can be kept current. You may from time to time be notified (by e-mail to the address that you have provided to us as your designated contact e-mail or via text message to the phone number that you have provided to us as your designated phone number) that information collected via the Services may be available for your review that is considered time sensitive. This may include patient medical information, information regarding scheduled medical procedures, and physician information.
a. Access to and use of Services is restricted to Registered Users who have been issued valid Registered User IDs which have not been suspended, revoked or otherwise terminated or disabled. You agree to fully, accurately and truthfully create and maintain your Registered User account, including, but not limited to, providing us with your full and accurate name, mailing address, telephone number, email address, or other identifying credentials or information as we may from time to time require (such passwords, user names or other identifying credentials or information collectively your “Registered User ID”). You must as promptly as possible update your Registered User account in the event any of the foregoing information changes. It is a condition of your access to and use of Services that all the information you provide on or through this Website or Services is correct, current and complete. You agree that all information you provide to the Website or Services, is also governed by our Privacy Policy, and you consent to all actions we take with respect to such information, consistent with our Privacy Policy.
b. Your Registered User ID is personal to you and you must at all times maintain the confidentiality of your Registered User ID and not share it with anyone. You are responsible for maintaining the confidentiality of your Registered User ID and for all activities that occur on or through the Website or the Services or otherwise under your Registered User ID. You will be responsible for any and all improper use of your Registered User ID. You shall be deemed to have performed or committed any act, communication, posting, processing or other activity by anyone under or utilizing your Registered User ID. You must prohibit any other Person from using your Registered User ID and must immediately notify us in writing of any actual or suspected unauthorized use of your Registered User ID, or of any other security Terms of Use concerns of which you become aware. In order to enable us to determine your compliance with this Terms of Use from time to time, we reserve, and shall at all times have, the right (but shall have no obligation) to monitor your access to and use of the Website or the Services (or any other part of the System) and to disable, revoke or terminate your Registered User ID (whether chosen by you or provided by us). We may in our sole and absolute discretion refuse to provide you with access to, or may discontinue your access to or use of the Website or the Services (or any other part of the System) in the event of any actual or potential misuse thereof by you or otherwise under or in connection with your Registered User ID, or for any or no reason, including if in our opinion, you (or anyone utilizing your Registered User ID) violate any provision of this Terms of Use.
c. You should use particular caution when accessing Services from a public or shared computer so that others are not able to view or record confidential information, your Registered User ID, or other personal information.
3.2 SERVICES/GENERAL.
a. You are only authorized to access and use the Website and Services if you are a Registered User and then only to lawfully communicate or interact with such Customers who are also Registered Users.
b. The Services consist of the provision of access to such features or functionality of certain hosted applications, including EHR and appointment calendaring, Company Software through user interfaces on the Website, and such technical support services, System monitoring, backup and recovery, performance tuning, file retrieval, patches and updates, storage, System level security, training and other services as may be offered by or through Company from time to time. You are at all times responsible for obtaining and maintaining at your sole cost and expense any telephone, electric and other utilities, Internet access services and connections (or other services), any other equipment or services needed to access the website and utilize any Services, and for all costs and fees associated with any of the foregoing.
c. We may from time to time contact you by telephone, mail or email to verify any information you provide to us during any enrollment or registration process for the Services or in connection with your Registered User ID, or to request further information from you. You agree to provide such further information and to verify any information you have provided to us or otherwise on or through this Website or the Services. If you do not provide this information in the manner requested by us within such time as we may require, we may suspend, discontinue or deny your access to and use of the Website or any Services, until the information we have requested is provided by you.
3.3 GRANT OF LICENSE TO REGISTERED USERS.
a. Company and its third party licensors own and reserve all right, title and interest, including all Intellectual Property Rights, in and to the System, Services, Company Software, Company Technology and any Derivatives thereof. Subject always to the terms, conditions and restrictions of this Terms of Use and the Privacy Policy, Company grants to Registered Users, and if you are a Registered User you hereby accept from Company, a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to remotely, over the Internet, access and use the Website and those Services for which you are a Registered User under your valid Registered User ID and only during the Term of the Agreement between you and the Company (herein collectively the “Registered User License”).
b. The Registered User License is subject to all limitations and restrictions set forth in this Terms of Use. We may in our sole and absolute discretion limit, suspend, terminate or revoke the Registered User License in whole or in part with respect to you or any other Registered User, and with or without notice. No other rights or licenses to access or utilize any Service are granted to you under this Terms of Use or otherwise, nor may any be implied or inferred.
c. If you access the Website or the Services using an Apple IOS, Android or Microsoft Windows powered device, then your access to the Services using those devices is also subject to the usage terms set forth in the applicable third party’s terms of service. When you access Services through a mobile network, or when the Company wishes to communicate with you regarding urgent information, your network or roaming provider’s messaging, data or other rates and fees will apply.
3.4 CONSENT TO USE OF CERTAIN USER DATA. You agree that the Company may collect, maintain, process and use, diagnostic technical usage and related information including but not limited to unique system or hardware identifiers, geolocation, IP addresses, computers or other devices which you utilize to access the Website or Services, that is gathered periodically to provide and improve or facilitate the provision of the Website and Services and to verify compliance with this Terms of Use. We may use this information as long as it is collected in a form that does not personally identify you, for the purposes described above, to enable our affiliates, partners, licensors or third party developers to improve Company Software, the Website, or Services. All information we collect on or through the Website or the Services is subject to our Privacy Policy www.confirmedsolutions.com/privacy-policy. By using the Website or any of the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
3.5 RELIANCE ON INFORMATION POSTED. We do not warrant the accuracy, completeness or usefulness of the information on the Website. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you to the Website.
3.6 SERVICE MODIFICATIONS AND MAINTENANCE.
a. Company reserves the right to, and may at any time or from time to time in its sole and absolute discretion: (i) enhance, modify, amend, disable, or remove, in whole or in part, the Website or the Services, or any content, feature(s) or functionality of the Website or the Services (or any other part of the System); (ii) add additional Service offerings; (iii) remove Service offerings; or (iv) modify this Terms of Use, or any guideline, policy or other terms referenced in or incorporated by this Terms of Use or posted on the Website from time to time, including by modification, deletion, or addition of any part(s) thereof (the immediately preceding (i) – (iv) collectively, “Revised Terms”). We will provide notice of Revised Terms by posting a revised version of this Terms of Use on the Website. Your continued use of the Website or the Services after any Revised Terms become effective constitutes your acceptance of the Revised Terms. You are responsible for regularly checking the Website for Revised Terms.
b. In addition to our right to suspend, terminate or revoke the Registered User License and your access to the Website or the Services (or any other part of the System) in accordance with any other provision of this Terms of Use, we may from time to time suspend all or any part of the Services without liability and without prior notice to you or any other Person: (i) in order to maintain (e.g. update, modify, upgrade, patch or repair) the System or any other part or aspect of our infrastructure; or (ii) as we in our sole and absolute discretion determine may be required by any applicable Laws or necessary to protect the System (or any part thereof) or any other part of our infrastructure from unauthorized access or any attack. We will endeavor in good faith (but will have no obligation) to provide you with advance notice of scheduled suspension of applicable Services, whether by posting such notice to the Website, by e-mail or otherwise as we in our sole and absolute discretion determine.
3.7 NONEXCLUSIVE RIGHTS/SIMILAR AGREEMENTS. The rights and licenses granted by us in this Terms of Use or in our Agreements with our Customers are nonexclusive. Nothing in any Agreement, this Terms of Use or otherwise prevents us, or may in any respect or under any circumstance be construed or operate to prevent us or any of our Affiliates from offering or providing any access to or use of the Website or the Services (or any other part of the System) to any other Person(s) or from offering, entering into or performing under similar agreements with any other Person(s).
4. YOUR RESPONSIBILITIES; PROHIBITED ACTS
4.1 You must never use the Website or the Services in any manner which violates, or which we reasonably believe or suspect might violate applicable Laws.
4.2 Company may cooperate with law enforcement authorities in the investigation and prosecution of criminal activity. You agree that Company may disclose your data, including any information regarding IP addresses, Account history, Account use, Registered User ID, or any other information, data, or materials to any law enforcement agency as permitted hereunder or as may be required under applicable Laws, in each case without your or anyone else’s consent, and without any notification to you or anyone else.
4.3 You may not access or use or attempt to access or use, the Website or the Service (or any other part of the System) in any manner or for any purpose other than as expressly permitted under this Terms of Use, and then only in compliance with all applicable Laws. Furthermore, you must never, directly or indirectly do, authorize third parties to do, or attempt to do or assist third parties in doing or attempting to do any of the following:
a. modify, alter, tamper with, or interfere with any feature, functionality or proper working of the Website or the Services (or any other part of the System);
b. reverse engineer, decompile, disassemble or otherwise attempt to discern or derive the source code or any underlying algorithm, or create Derivative Works of any Company Software or any part thereof or to violate, misappropriate or infringe any Intellectual Property Rights;
c. disclose your Registered User ID or fraudulently establish or utilize any Registered User ID;
d. fraudulently access or use any of the Services to avoid incurring applicable fees or exceeding applicable usage limits;
e. attempt to hack or break (or hack or break) any security mechanism of or on the System or any part thereof;
f. access or use or attempt to access or use the Website or the Service (or any other part of the System) in any way that is disruptive to or threatens the System (or any part thereof) or any access or use of the System (or any part thereof) by us or any of our other customers or licensees;
g. share or make available for viewing to any unauthorized Person, any PHI contained on the Website or the Services;
h. use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithms or methodology to access, acquire, copy or monitor the Website or Services (or any other part of the System), any other data, information or materials, for any purpose.
4.4 COMPLIANCE REVIEW. Pursuant to our Privacy Policy, we may (but shall have no obligation to) review Registered User data, or any other transmissions, submissions or postings made by you, or under your Registered User ID, on or through the Website or the Services to determine, in our sole discretion, your compliance with this Terms of Use.
4.5 CONTINOUS OPERATION. We do not warrant uninterrupted or error free operation of the Website or the Services (or any other part of the System), or that we will correct any defects, nor do we make any representation or warranty as to the capacity, performance or scalability of the Website or the Services (or any other part of the System).
4.6 COOPERATION. You must promptly provide us with any information, cooperation or assistance we may from time to time reasonably request to enable us, the Website, or the Services to comply with applicable Laws. We may report or provide such information or documents to regulatory or law enforcement authorities if and to the extent we in our sole and absolute discretion deem necessary and appropriate in order to comply with applicable Laws.
5. MONITORING AND ENFORCEMENT
We have the right to:
a. take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website or the Services (or any other part of the System);
b. terminate or suspend your access to all or part of the Website or any Services for any violation of this Terms of Use; or
c. without limiting the foregoing, to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website or the Services. You waive, and agree to indemnify and hold harmless Company and its affiliates, licensees and service providers from and against any claims resulting from any action taken by law enforcement authorities.
6. PROPRIETARY RIGHTS
6.1 COMPANY’S PROPRIETARY RIGHTS.
a. The names “ConfirMED” and “ConfirMEDsolutions”, and the domain “www.ConfirMEDsolutions.com” and our graphics, logos, page headers, button icons, scripts and service names and other source identifying symbols or device used by us on or in connection with the Website or the Services are our trademarks or trade dress, in the United States and/or other countries (collectively “Proprietary Marks”). You may not use any Proprietary Marks without our prior express written permission, which permission may be conditioned or withheld in our sole discretion.
b. All content on the Website is protected by copyright under both United States and foreign laws. The Intellectual Property Rights in and to the content remain with Company and its third party licensors. Any use of content not expressly permitted by this Terms of Use is in breach of this Terms of Use and may violate copyright, trademark and other Laws. Any content or features on this Website are subject to change or termination without notice in the editorial discretion of Company. All rights not expressly granted herein are reserved to Company. If you violate any of this Terms of Use, your permission to use any content from this Website automatically terminates and you must immediately destroy any copies you have made of any such content.
c. Nothing in this Terms of Use grants, transfers or conveys, nor may be construed or operate as a grant, transfer or conveyance to you or any other Person, of any right, title or interest in or to, or (except for the Registered User License) any license to use any Company Materials, any Proprietary Marks, or any Intellectual Property Rights in or to Company Materials or Proprietary Marks. All goodwill arising from or incident to any use of Company Materials or Proprietary Marks shall inure exclusively to Company.
6.2 SUGGESTIONS. If you provide us with any recommendations, advice, ideas or suggestions regarding improvement(s) to, or Derivatives of the Website or the Services (or any other part of the System) (each a “Suggestion” and collectively “Suggestions”), we will own all right, title and interest (including any Intellectual Property Rights) in and to that Suggestion (or those Suggestions) even if you designate the Suggestion as “confidential”, “proprietary” or with words of similar import. We, our Affiliates, successors, or assigns shall be entitled to use and exploit any Suggestion without restriction and without any obligation to pay or to otherwise compensate you or anyone else. You shall, and hereby do, irrevocably assign to us all right, title and interest (including all Intellectual Property Rights) in and to all Suggestions (if any) and agree to provide us or our designees with any assistance we or they may reasonably request or require from time to time to further document, perfect and maintain our rights in or to any Suggestion(s).
6.3 You agree never to use or register, or authorize others to use or register, any corporate, company, domain, trade or service name or mark containing any Proprietary Mark or any component or alternate spelling thereof or any similar or confusingly similar term thereto.
7. INDEMNIFICATION
7.1 GENERAL.
a. You agree to release (and do hereby release) and indemnify, defend and hold harmless Company, our Affiliates, licensors, contractors, agents and our or their respective employees, officers, directors, members or managers (each an “Indemnitee” and collectively the “Indemnitees”) harmless from and against any and all liabilities, claims, losses, actions, cause of action, suits (regardless of whether in law or in equity), proceedings, judgments, fines, penalties, costs and expenses (including attorneys fees, expert witness fees and court costs incurred prior to or during trial, arbitration or appeal) in any manner relating to or arising, directly or indirectly from or in connection with:
(i) your use or misuse of the Website or the Service, or any information posted on the Website or any Service;
(ii) your default under or breach of any provision of this Terms of Use, including any breach of any of our Privacy Policy;
(iii) any relationship between you and any Customer, Licensed Healthcare Professional, or any of their respective personnel or representatives;
(iv) the content or subject matter of any information or materials that you may from time to time provide to Company, any of our Affiliates, Customers, any Licensed Healthcare
Professional, any of their respective personnel;
(v) any healthcare outcome, bodily injury or property damage which you may suffer or incur arising from or in connection with any use or inability to use the Website or the Services, or any information or materials which may from time to time be Posted on or comprise the
Website or any Services;
(vi) any negligent act, omission, misconduct by you in or in any respect relating to your use, misuse or inability to access or use the Website or the Services or any
information posted on or comprising the Website or any Service; or
(vii) any infringement by you of our or any third party’s Intellectual Property Rights, or any other negligent or wrongful act or omission by you.
b. In the event that we are threatened with any suit or proceeding by a third party, we may seek written assurances from you regarding your promise to indemnify us or any Indemnitee. Your failure to promptly provide us with such assurances as we may request and within the time period within which we so request them, shall constitute a breach of this Terms of Use.
7.2 NOTIFICATION. We will promptly notify you of any claim which we become aware of and which we believe to be subject to indemnification by you under this Section 7. Our failure to promptly notify you shall not, however affect your indemnification obligations hereunder except to the extent that our failure to promptly notify you materially prejudices your ability to defend the claim. We shall have the right to select our own counsel and direct our own defense with respect to any such claims, demands, actions, suits or proceedings and you shall cooperate fully and in good faith with us in any such defense. At our option, you will have the right to defend against any such claim(s) with counsel of your own choosing and reasonably acceptable to us (subject to a conflicts assessment), and to settle such claim as you reasonably deem appropriate, provided that you (nor any Person acting on your behalf) may enter into any settlement without our express prior written consent (which may be conditioned or withheld in our sole and absolute discretion) and provided that we may, at any time, elect to take over control of the defense and settlement of any claim
8. TERMINATION.
Sections 4, 6, and 7 and the Privacy Policy shall survive any expiration or termination of Services.
8.1 TERMINATION OF DESIGNATED USER STATUS. Your right under this Terms of Use to access and use the Website or the Services, and the Registered User License, as to you, shall terminate without penalty and without notice if: (a) you terminate your status as a Registered User; or (b) you fail to comply with any of the terms or conditions of this Terms of Use. Upon or at any time following any of the foregoing events, we may (but shall not be obligated to) disable your Registered User ID and you may no longer be permitted access to or use of the Website or the Services (or any other part of the System).
8.2 TERMINATION OR SUSPENSION BY US FOR CAUSE. We may terminate or suspend the Registered User License and your access to or use of the Website or any Services (or any other part of the System) in whole or in part, in our sole and absolute discretion at any time with or without our giving of any notice to you or otherwise if you directly or indirectly perform any of the forbidden acts identified in Section 4.3 of this Terms of Use.
8.3 TERMINATION OR SUSPENSION BY US OTHER THAN FOR CAUSE. We may terminate or suspend the Registered User License as to you, and your access to or use of the Website or any Services for any or no reason, and in our sole and absolute discretion at any time by providing you with not less than twenty-four (24) hours prior notice or without prior notice in the event of System outages, emergency maintenance or repair or force majeure.
8.4 EFFECT OF TERMINATION
a. TERMINATION. Upon termination of your Registered User License: (i) you remain liable for all fees, charges which shall have accrued under the Fee Schedule through the date of termination, but then remain unpaid, and any other obligations which have accrued under this Terms of Use through the effective date of termination; and (ii) all of your rights under this Terms of Use (including the Registered User License) immediately terminate.
In the event that the Registered User License is terminated for any reason, whether by you or us, and regardless of whether such termination is with or without cause, those of your obligations and liabilities which shall have accrued under this Terms of Use prior to the effective date of that termination or which by the terms of this Terms of Use contemplate or require performance subsequent to termination, and all of our rights under this Terms of Use shall continue in full force and effect.
8.5 COPIES AND ARCHIVES. You acknowledge that we shall be entitled (but except to the extent otherwise required under applicable Laws, not obligated) to retain archives and a copy of any and all User Data which you may Process on or through the Website or any Service (or any other part of the System), which we in our sole and absolute discretion determine to be needed to respond to any inquiries following expiration or termination of the Term or to evaluate any claims (if any), or queries and requests of law enforcement or other governmental agencies, or which may be required in order to comply with applicable Laws.
9. COPYRIGHT.
If you are authorized to act on behalf of a copyright owner, and any material on the Website or the Services infringes the Intellectual Property Rights of the copyright owner, please notify us at: ConfirMED LLC with the Subject: COPYRIGHT at info@ConfirMEDsolutions.com.
To be effective, your notification must provide us with information that meets certain requirements of the Digital Millennium Copyright Act, title 17, United States Code, Section 512, which are summarized as follows:
a. a physical or electronic signature of a Person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b. a detailed identification of copyrighted work or works claimed to have been infringed;
c. information sufficient to permit us to locate the allegedly infringing material;
d. information sufficient to permit us to contact you, such as an address, telephone number or email address;
e. a statement that you have a good faith belief that the use of the allegedly infringing material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
f. sworn statement that the information in your notification is accurate and that you are authorized to act on behalf of the copyright owner of the allegedly infringed material.
10. DISCLAIMERS & LIMITATIONS ON LIABILITY
10.1 SERVICE RELIABILITY AND WARRANTIES. We make no warranty that the Website or the Services (or any other part of the System) will meet your requirements, or that the Website or the Services will be uninterrupted, timely, 100% secure, or error free, or that defects, if any, will be corrected. This includes loss of data resulting from delays, and any service interruption caused by our employees or contractors. We are not responsible for transmission errors or corruption or compromise of data carried over local or interchange telecommunication carriers.
We will take commercially reasonable precautions to protect against failure of our equipment and software. You acknowledge and agree that temporary interruptions in service may occur, and that we shall have no liability for any claim, cost, charge, loss or expense arising from or relating to use of or inability to access or use the Website or the Services (or any other part of the System). You acknowledge and agree that in the event restoration of data from backup is necessary, it may take several days to complete such restoration of data and resume operation of the Website or the Services.
10.2 GENERAL DISCLAIMER. The System, Company Software, Company Materials, Services, Website, Company Technology, and any other service, technology, software, feature, functionality, content, image, file, database, data, information, manual, guide, instruction or materials provided by or through us or any of our Affiliates or third party licensors or suppliers under or in connection with the Agreement or this Terms of Use or which at any time or times comprise any part of the Website, any Service or any other part of the System, (collectively the “Offerings” or “OFFERINGS”) are provided “AS IS” and “AS AVAILABLE”. YOU AGREE THAT YOUR USE OF ANY OFFERINGS IS AT YOUR SOLE RISK AND THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL RISK ASSOCIATED THEREWITH. NEITHER WE NOR ANY OF OUR AFFILIATES, NOR ANY OF OUR OR THEIR RESPECTIVE AGENTS, SHAREHOLDER, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES OR OTHER REPRESENTATIVES, (ALL SUCH AGENTS, SHAREHOLDERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES OR OTHER REPRESENTATIVES HEREINAFTER COLLECTIVELY REFERRED TO AS “REPRESENTATIVES”, THIRD PARTY LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY OF THE OFFERINGS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, WE, OUR AFFILIA TES, OUR AND THEIR AGENTS, SHAREHOLDERS, DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES OR OTHER REPRESENTATIVES, THIRD PARTY CONTRACTORS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUSES, QUIET ENJOYMENT, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NEITHER WE NOR ANY OF OUR AFFILIATES, OR ANY OF OUR OR THEIR REPRESENTATIVES, THIRD PARTY CONTRACTORS, LICENSORS OR SUPPLIERS MAKE ANY WARRANTY AS TO THE RELIABILITY, ACCURACY, TIMELINESS, USEFULNESS, ADEQUACY , COMPLETENESS OR SUIT ABILITY OF ANY PRODUCT OR SERVICE PROVIDED ON OR THROUGH THE SITE OR SYSTEM, OR ANY CONTENT OR MATERIALS AT ANY TIME OR FROM TIME TO TIME POSTED ON OR TO THE SITE OR ANY SERVICE OR OTHERWISE PROVIDED UNDER OR PURSUANT TO THIS TERMS OF USE, OR AS TO THE SATISFACTION OF ANY GOVERNMENT REGULATIONS OR OTHER LAWS REQUIRING DISCLOSURE OF INFORMATION RELATING TO PRESCRIPTION DRUG PRODUCTS; OR AS TO THE QUALIFICATIONS, LICENSURE OR COMPETENCY OF ANY PERSON WITH WHOM YOU MAY COMMUNICATE OR OTHERWISE INTERACT ON OR THROUGH THE SITE OR ANY SERVICES OR AS TO ANY TREATMENT, HEALTHCARE OUTCOMES, ANY ACTIONS OR APPLICATIONS OR PREPARATION OF MEDICATION BASED UPON OR RELATING TO ANY INFORMATION OFFERED OR PROVIDED BY ANY PERSON OR ENTITY ON, THROUGH OR UTILIZING THE SITE OR ANY SERVICES (OR ANY OTHER PART OF THE SYSTEM). FURTHERMORE, NEITHER WE NOR ANY OF OUR AFFILIATES NOR ANY OF OUR OR THEIR RESPECTIVE REPRESENTATIVES, THIRD PARTY LICENSORS OR SUPPLIERS WARRANT THAT ANY OF THE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE ACCURATE, COMPLETE, UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR CODE, THAT ANY CONTENT, FILES, DATA OR OTHER MATERIALS (INCLUDING BUT NOT LIMITED TO ANY USER DATA) COMPRISING, OR UPLOADED TO, DOWNLOADED FROM, OR STORED, DISPLAYED ON OR OTHERWISE PROCESSED BY OR UTILIZING ANY OF THE OFFERINGS WILL BE TIMELY, CURRENT, ACCURATE OR SECURE. OR WILL NOT BE LOST, CORRUPTED OR OTHERWISE DAMAGED OR IMPAIRED, OR THAT WE OR THEY WILL BE ABLE TO PREVENT DISRUPTION OF OR TO ANY OF THE OFFERINGS OR THAT WE OR THEY WILL CORRECT ANY DEFECTS OR THAT THE SITE OR ANY SERVICES OR ANY INFORMATION OR MATERIALS OBTAINED THROUGH THE SITE OR ANY SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
10.3 INTERRUPTION OF SERVICE. Neither Company nor any of its Affiliates nor any of its or their agents, representatives or third party licensors or suppliers shall have any liability whatsoever to you, or other Person, for or with respect to any delay, outage or interruption of the Website or any Service (or any other part of the System) or the unavailability in whole or in part of the System).
10.4 LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, NEITHER COMPANY NOR ANY OF OUR AFFILIATES, REPRESENTATIVES, THIRD PARTY LICENSORS OR SUPPLIERS, SHALL BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR BODILY INJURY OR DEATH, OR DAMAGE OR INJURY TO ANY PROPERTY, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, LOSS OF PROFITS, GOODWILL, USE, FILES, CONTENT, DATA, USER DATA, BUSINESS, OPPORTUNITIES, REVENUES, ANTICIPATED SAVINGS OR OTHERWISE (EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER THE CLAIMS ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INFRINGEMENT, OR ANY OTHER LEGAL OR EQUITABLE THEORY WHATSOEVER) IN CONNECTION WITH ANY OF THE OFFERINGS, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM, INCIDENT TO OR IN ANY WAY CONNECTED WITH: (i) ACCESS TO OR USE OF, OR THE INABILITY TO ACCESS OR USE, THE SITE, ANY SERVICE OR ANY OTHER PART OF THE SYSTEM OR OTHER OFFERINGS; (ii) THE PROVISION OF, OR ANY DELAY OR FAILURE TO PROVIDE, OR ANY INTERRUPTION IN OR TO, ANY SERVICE OR OTHER OFFERING; (iii) ANY SOFTWARE (WHETHER COMPRISING PART OF, OR UTILIZED IN CONNECTION WITH, THE SITE OR ANY SERVICE OR ANY OTHER PART OF THE SYSTEM OR OFFERINGS, ANY THIRD PARTY SOFTWARE, ANY USER INSTALLED PROGRAM OR OTHERWISE); (iv) ANY PRODUCT, SERVICE, DATA, FILE, CONTENT, DATA, USER DATA OR MATERIALS WHETHER OR NOT STORED ON, PROVIDED, OBTAINED OR ACCESSED THROUGH, UPLOADED TO OR DOWNLOADED FROM OR OTHERWISE PROCESSED UTILIZING, THE SITE OR ANY SERVICE OR ANY OTHER PART OF THE SYSTEM, OR OTHER OFFERINGS, OR ANY DAMAGE TO OR CORRUPTION OR LOSS OF ANY OF THE FOREGOING; (iv) ANY ACCESS TO OR USE OF, OR THE INABILITY TO ACCESS OR USE, ANY FEATURE OR FUNCTIONALITY OF ANY OFFERING OR OF ANY WEBSITE; (v) ANY USE OR RELIANCE UPON ANY INFORMATION OR ADVICE PROVIDED ON OR THROUGH THE SITE, OR ANY SERVICE OR OTHER OFFERING, INCLUDING HEALTHCARE OUTCOME; OR (vi) USE OF ANY SERVICE OR INTERACTION OR COMMUNICATION BETWEEN OR AMONG YOU, CUSTOMER, ANY OF CUSTOMER’S OTHER DESIGNATED USERS, ANY AUTHORIZED PATIENT, AND ANY OTHER PERSON OR ENTITY ON, THROUGH OR IN CONNECTION WITH THE SITE, ANY SERVICE OR OTHER OFFERING OR OTHERWISE; (vii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, CONTENT, USER DATA OR OTHER DATA; OR (viii) ANY ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, ANY USER DATA, OR ANY OTHER DATA OR MATERIALS.
b. IN THE EVENT THAT WE (OR ANY OF OUR AFFILIATES OR REPRESENTATIVES) ARE FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, YOU ACKNOWLEDGE AND AGREE THAT THE AGGREGATE LIABILITY OF COMPANY, ITS AFFILIATES AND REPRESENTATIVES WHO YOU OR OTHERWISE FOR AND WITH RESPECT OF ANY DAMAGES, LOSSES, FEES, CHARGES, EXPENSES OR LIABILITIES, AND IN CIRCUMSTANCES WHERE THE FOREGOING LIMITATION IS FINALLY DETERMINED TO BE UNAVAILABLE, SHALL NOT EXCEED THE GREATER OF $1000 OR THE AMOUNT ACTUALLY PAID TO US BY YOU FOR AND WITH RESPECT TO THE PARTICULAR SERVICES THAT GIVE RISE TO SUCH CLAIM DURING THE MONTH IN WHICH THE CAUSE OF ACTION ACCRUED. YOU AGREE TO AND DO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANY RIGHTS WHICH YOU MAY HAVE UNDER SUCH LAWS THAT LIMIT THE EFFICACY OF ANY OF THE FOREGOING PROVISIONS OF THIS SECTION 10 OR ANY OF THE PROVISIONS OF SECTION 10.1.
10.5 THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR DIRECT INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
11. FEES AND APPLICABLE CHARGES
a. You agree that you are responsible for payment of all subscription fees for for the Services, pursuant to the schedule of subscriptions and fees set forth on the Website. Company reserves the right to modify its’ pricing structure at any time and implement the new price structure at any time prior to billing you for your initial payment or for future payments due pursuant to these Terms of Use. You understand that Services may not be provided if your credit card information is inaccurate or invalid.
b. When you provide payment information, you represent and warrant that the information is accurate, that you are authorized to use the payment method provided, and that you will notify us of changes to the payment information. We reserve the right to utilize third party credit card updating services to obtain current expiration dates on credit cards. If you use a payment method other than a credit card, you may incur an additional payment processing fee.
12. MISCELLANEOUS
12.1 FORCE MAJEURE. Notwithstanding any provision of this Terms of Use to the contrary, neither we nor any of our Affiliates or any of our of their respective Representatives or third party licensors or suppliers will be liable in any respect under any theory of liability for any delay, default or failure to perform any obligation under the Agreement, this Terms of Use, or otherwise, due to any cause beyond our or their reasonable control including acts of God, war, terrorism, riot or riots; embargos; strikes or walkouts or other industrial disputes; acts of civil or military authorities, government interference; denial or delays in processing of export license application; fire, floods, earthquakes, storms, hurricanes or other accidents; fuel crises, failure or interruption of electric power, telephone, fiber optic cable or the Internet or other communication connections or service (each a “Force Majeure”).
12.2 ATTORNEYS FEES. If any legal action or other proceeding relating to this Terms of Use or the enforcement of any provision of this Terms of Use (including the Privacy Policy) is brought by us against you, we shall be entitled to recover reasonable attorney’s fees, costs and disbursements whether same be incurred before or at trial, on appeal or in any post judgment proceedings, in addition to any other relief to which we may be entitled.
12.3 WAIVER OF JURY TRIAL. YOU HEREBY WAIVE TRIAL BY JURY IN ANY LITIGATION, SUIT OR PROCEEDING, IN ANY COURT WITH RESPECT TO, IN CONJUNCTION WITH, OR ARISING OUT OF THIS TERMS OF USE, (INCLUDING THE PRIVACY POLICY), OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF, OR PERFORMANCE OF ANY OF THE OBLIGATIONS OR SERVICES HEREUNDER OR THEREUNDER; PROVIDED HOWEVER THAT WITH RESPECT TO ANY COMPULSORY COUNTERCLAIM (I.E. A CLAIM BY A PARTY TO THIS TERMS OF USE AGAINST ANOTHER PARTY WHICH IF NOT BROUGHT IN SUCH ACTION, WOULD RESULT IN THE FIRST PARTY BEING FOREVER BARRED FROM BRINGING SUCH CLAIM) A PARTY TO THIS TERMS OF USE SHALL HAVE THE RIGHT TO RAISE SUCH COMPULSORY COUNTERCLAIM IN ANY SUCH LITIGATION, SUIT OR PROCEEDING, WHETHER OR NOT IT IS BEING TRIED BY A JURY.
12.4 ARBITRATION.
a. You agree that: (i) Company, the Website, the Services and all other parts of the System shall be deemed solely based in the state of Florida; (ii) this Terms of Use shall be governed by and construed in accordance with the internal Laws of the state of Florida and the federal laws of the United States without regard to any principals of conflicts of Law which might cause the application of the Laws of any other jurisdiction; and (iii) all civil claims for monetary damages and disputes relating in any way to the performance, interpretation, validity, default under or breach of this Terms of Use and which you and Company are unable or unwilling to resolve through good faith mediation or negotiation, (excepting however any claim or action for an injunction or other equitable relief to protect Confidential Information or to enforce Intellectual Property Rights) shall be referred to final and binding arbitration, before a single neutral arbitrator, under the then current commercial arbitration rules of the American Arbitration Association (“AAA”), in Broward County, Florida.
b. The arbitrator shall be a retired judge of the Circuit Court of the 17th Judicial Circuit in and for Broward County Florida (or have such other or additional qualifications as shall be mutually acceptable to the parties to the arbitration) and shall be selected from the AAA Panel list in accordance with the appointment rules of the AAA. Consistent with the expedited nature of arbitration, each party will upon the written request of any other party, promptly provide the other with copies of documents relevant to the issues raised by any claim or counterclaim on which the producing party may rely in support of or in opposition to any claim or defense. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator, which determination shall be conclusive.
c. In no event shall any party be entitled to punitive damages in any arbitration or judicial proceeding and you hereby waive your rights to any punitive damages. In the event the arbitrator or a court concludes that the punitive damages waiver contained in the previous sentence is unenforceable, then you agree that the court with subject matter jurisdiction over the confirmation of the award shall have sole and exclusive jurisdiction to determine issues of entitlement and amount of punitive damages. The arbitrator shall NOT have subject matter jurisdiction to decide any issues relating to the statute of limitations or to any request for injunctive or other equitable relief (and nothing herein is intended to nor may be construed or operate to prevent any party from seeking injunctive or other equitable relief from a court of competent jurisdiction), and you hereby stipulate to stay the arbitration proceeding (without the need of a bond) until any such issues in dispute are resolved.
d. Each party shall bear its own expenses associated with the arbitration; the parties shall equally share the filing and other administrative fees of the AAA and the expenses of the arbitrator.
e. Both during and after the entire arbitration process as contemplated herein, the arbitration itself and all information and discovery disclosed in the arbitration process (“Arbitration Information”) shall be maintained in strictest confidence by the parties and their counsel and by the authorized Persons to whom Arbitration Information is disclosed. Arbitration Information may be used, possessed and disclosed only as allowed in this Agreement and only for the purposes of arbitration and related proceedings pursuant to this Agreement, and for no other purpose whatsoever. Accordingly, without limitation, arbitration information may not be disclosed (i) to any judicial, governmental, regulatory, administrative, arbitral, corporate or other entity not administering arbitration under this Agreement; (ii) to any member of the general public; or (iii) to the media; provided however that arbitration information may be disclosed to (A) the arbitration parties and their respective advisors, consultants and experts (and such person’s authorized employees and agents); (B) the arbitrator and arbitration administrator (and their authorized staffs); (C) fact witnesses reasonably expected to offer relevant evidence in an arbitration proceeding; and (D) as ordered by a court of competent jurisdiction. The arbitrator shall, upon request, issue all prescriptive orders as may be required to enforce and maintain this covenant of confidentiality during the course of the arbitration and after the conclusion of same so that the result and underlying data, information, materials, and other evidence are forever withheld from public dissemination with the exception of a subpoena by a court of competent jurisdiction in an unrelated proceeding brought by a third party.
f. In the event that a dispute arises and the arbitration provisions herein become inapplicable or unenforceable, or in any instance of any lawsuit between you and us, jurisdiction over and venue of any suit shall be exclusively in the state and federal courts sitting in Broward County, Florida.
12.5 US GOVERNMENT. With respect to the procurement or use of any Service by or for any agency or part of the U.S. Government, any software provided in connection with any Service and any related explanatory written materials are “commercial items” as that term is defined at 48 CFR Section 2.102, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR Section 12.212 or 48 CFR Section 227.7202, as applicable. Consistent with 48 CFR Section 12.212 or 48 CFR Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computers Software Documentation are being licensed to the U.S. Government end users (a) only as Commercial Items; and (b) with only those rights as are granted to Customer or its Designated Users pursuant to the terms, conditions and restrictions of the Agreement and this Terms of Use. All Computer Software, technical data and documentation were developed exclusively at private expense by ConfirMED LLC.
12.6 NOTICES. Notices made by us to you under this Terms of Use that affect our customers, visitors, the Website or any Services generally, may be posted on the Website. Notices made by us under this Terms of Use or the Agreement specifically regarding your Registered User ID (e.g., notices of default, breach or suspension) may be provided to you via the email address provided to us in your registration for the Services, or via any updated email address provided to us in accordance with your Registered User ID, information update procedures we may establish from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent by us to any such email address, upon our sending of the email, whether or not you actually receive the email.
a. For notices made by you to us under this Terms of Use and for questions regarding this Terms of Use or any Services, you must contact us as follows:
Notices required or permitted to be given by you to us pursuant to this Terms of Use shall be effective only when actually received by us and shall be sufficient if given in writing and (A) hand delivered; or (B) sent by first class mail, return receipt requested and postage prepaid; or (C) by Federal Express or other reputable overnight courier service to us at the following address: ConfirMED LLC, 2805 E. Oakland Park Blvd, #484, Fort Lauderdale, FL 33306. We may change the address for notice to us by notifying Customer of such address change in accordance with the notice provisions of this Section.
12.7 SEVERABILITY. If any portion of this Terms of Use is held by a court or arbitral body of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Terms of Use will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language and is valid and enforceable. If such construction is not reasonably possible, the provision will be severed from this Terms of Use and the rest of the Terms of Use shall remain in full force and effect.
12.8 WAIVERS. The failure or delay by us to enforce any provision of this Terms of Use the Agreement shall in no way operate as, or be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce such provision thereafter. All waivers by us, to be enforceable, must be in a writing executed by one of our authorized officers to be effective.
12.9 RELATIONSHIP. You and we are independent contractors with respect to all activities under this Terms of Use (including the Privacy Policy) and nothing in this Terms of Use or the Privacy Policy is intended or may be construed or operate to create any employment, franchise, joint venture, agency, partnership, escrow, franchise, fiduciary or other relationship other than that of independent contractors.
12.10 ASSIGNMENT.
a. We may assign any or all of our rights or delegate any or all of our obligations under this Terms of Use to any third party without any notice to or consent by you or Customer or any other Person, and for any purpose, including without limitation: (i) collection of unpaid amounts; (ii) in the event of an acquisition, corporate reorganization or merger; (iii) or sale of substantially all of our assets to another Person. You and Customer each hereby consent to any such assignment or delegation. Under no circumstances may you directly or indirectly rent, lease, sublicense, assign or otherwise transfer any rights or licenses under this Terms of Use (including any under the Privacy Policy) or delegate any of your obligations under this Terms of Use (including any under the Privacy Policy) whether by operation of Law or otherwise. Any attempted assignment or delegation by you of any right or obligations under this Terms of Use (including any under the Privacy Policy) whether by operation of Law or otherwise, is null and void and of no force and effect.
12.11 LANGUAGE. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
12.12 BINDING COMMERCIAL TRANSACTIONS. Any commercial transaction properly transmitted pursuant to this Terms of Use shall be considered to be a “writing” or “document in writing”, and any such transmission when containing, or to which there is affixed a signature shall be deemed for all purposes (a) to have been “signed” and (b) to constitute an “original” when printed from electronic files or records established and maintained in the normal course of business.
12.13 CUMULATIVE/NON-EXCLUSIVE REMEDIES. No remedy provided or conferred upon Company in this Terms of Use is intended to be, nor may be construed as being, exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to every other remedy provided under this Terms of Use or which now or hereafter may exist under applicable Laws, or in equity. No single or partial exercise by Company of any right, power or remedy under this Terms of Use shall preclude any other or further exercise thereof.
12.14 ENTIRE AGREEMENT. This Terms of Use incorporates by reference all policies and guidelines posted by us on the Website, including our Privacy Policy and constitutes the entire agreement between us and you regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.