SMD Terms & Conditions

SMART MARKET DENTAL TERMS OF USE
THIS SMART MARKET DENTAL TERMS OF USE (“TERMS OF USE”) IS A LEGAL AGREEMENT AND CONSTITUTES THE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICE (AS DEFINED BELOW) PROVIDED BY SMART MARKET DENTAL, INC., A PENNSYLVANIA CORPORATION (THE “AGENCY”). BY EXECUTING A STATEMENT OF USE, OR OTHER DOCUMENT WITH AGENCY AUTHORIZING YOUR USE OF THE SERVICE (COLLECTIVELY, THE “SOW”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF USE, INCLUDING THE HIPAA BUSINESS ASSOCIATE AGREEMENT, WHICH IS INCORPORATED INTO THESE TERMS OF USE BY REFERENCE.

IF YOU ARE ENTERING INTO THESE TERMS OF USE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THESE TERMS OF USE AND, IN SUCH EVENT, “YOU,” “YOUR,” AND “CLIENT” AS USED IN THESE TERMS OF USE SHALL REFER TO SUCH ENTITY (HEREINAFTER, AGENCY AND YOU, YOUR, OR CLIENT, SHALL BE REFERRED TO INDIVIDUALLY AS A “PARTY” AND TOGETHER AS THE “PARTIES”). IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THESE TERMS OF USE, YOU MAY NOT USE THE SERVICE. THESE TERMS OF USE AMEND AND SUPPLEMENT ANY AGREEMENT BETWEEN THE PARTIES. IF THERE IS ANY CONFLICT BETWEEN THE PROVISIONS OF THESE TERMS OF USE AND AN AGREEMENT, SOW OR LEGAL TERMS AND CONDITIONS BETWEEN YOU AND AGENCY, THE PROVISIONS OF THESE TERMS OF USE SHALL GOVERN AND PREVAIL AS TO THE USE OF THE SERVICE.

DEFINITIONS. In addition to terms defined elsewhere in these Terms of Use, the following capitalized terms will have the following respective meanings for the purposes of these Terms of Use:
1. “Terms of Use” means this Smart Market Dental Terms of Use agreement and any materials specifically incorporated by reference herein.
2. “Billing Period” means this period of time detailed in the SOW signed by the Client.
3. “Client Data” means any data, information, trademarks, logos, files, images, text, or other material that You or any Users provide or submit to Agency in the course of using the Service.
4. “Documentation” means subscription forms, program documentation, user manuals, handbooks, and other materials describing the use, design, installation, operation and maintenance of the Service made available by the Agency.
5. “Effective Date” means the date of acceptance and execution of the SOW.
6. “Service” means the Agency’s provision of access to the copyrighted Internet-based software-as-a-service application titled SMD Software, provided by the Agency, including any new features or enhancements to the Service that are made available by Agency to You during the Term of these Terms of Use (as defined in Section 16.1).
7. “Users” means those individuals authorized by You and the Agency to use the Service, and having user identifications and passwords registered under the name of such individuals.
LICENSE GRANT. Subject to the terms and conditions of these Terms of Use, including, without limitation, Client’s timely payment of all fees, the Agency hereby grants to Client for the Term, a non-exclusive, non-transferable and non-assignable, non-sublicensable, worldwide, terminable (as specified in Section 16.3) license to use the Service solely for Client’s internal business operations (the “Purpose”) and subject to the terms and condition of these Terms of Use. Any new features or enhancements to the Service that are made available by the Agency to the Client during the Term of the Agreement and any new service(s) subsequently purchased by Client will be subject to these Terms of Use.
INTERNET ACCESS. Client understands that Client must have or must acquire access to the Internet, provide all equipment necessary to maintain such connection, and obtain software that will access and display Web-based and Client-based content. The Agency shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, Client uses in accessing the Internet to access the Service. Client understands that any Internet Access problems will cause performance issues using the Service and the Agency provides no warranty in any such case.
SECURITY. Client shall provide adequate industry “best practice” standards to ensure reasonably secure access to the Internet, a remote computer network, and the Service provided by the Agency.
USER COMPLIANCE. Client may allow Users to utilize the Service in connection with the Purpose and is responsible for the conduct of Users and their compliance with these Terms of Use. Client assumes all liability for any Breach of Unsecured Protected Health Information as required at 45 CFR § 164.410, including any Breach of Unsecured Protected Health Information caused by any individual Client employs or third parties with which Client works or consults that have access to patient calls.
PROVISION OF FUTURE SERVICES. Client acknowledges that Agency may decide to provide Client with new features or enhancements to the Service during the Term of the Agreement in its sole discretion and agrees that the subscription to the Service hereunder is neither dependent on the delivery or availability of any future functionality nor any oral or written comments made by the Agency regarding future functionality or features.
CLIENT OBLIGATIONS. Client agrees to abide by and uphold the obligations listed hereunder:
1. CLIENT CONDUCT. Client hereby agrees to comply with all applicable local, state, federal and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including proper notification to all Users of the Service. Client also agrees that Client shall not:
  - modify, make derivative works of, disassemble, decompile, or reverse engineer the Service;
  - make any attempt to ascertain, derive, or obtain the source code of the Service;
  - except as expressly provided in these Terms of Use or the Documentation, copy, reproduce, distribute, republish, display, post, transmit, frame or mirror any content or part of the Service or Documentation;
  - build (1) a product or service that is competitive with the Service or (2) a product using similar features, functions, or graphics of the Service, by copying any aspect of the Service or misappropriating any of the Agency’s intellectual property rights in order to do so;
  - copy any features, functions, or graphics of the Service;
  - assist a third party in building, supporting, or copying products or services competitive to the Agency by copying any aspect of the Service or misappropriating any of the Agency’s intellectual property rights to do so;
  - transmit, publish, or store (1) infringing, obscene, threatening, harmful, libelous, defamatory, or otherwise unlawful or tortious material, (2) material that violates third party privacy rights, (3) material that promotes bigotry, racism, or hatred, or (4) any material containing software viruses, worms, time bombs, Trojan horses, or other harmful or malicious computer code, files, scripts, agents, or programs;
  - send any electronic communications from the Service that are unlawful, harassing, libelous, defamatory, or threatening;
  - express or imply that the Agency endorses Client’s electronic communications;
  - interfere with or disrupt the integrity or performance of the Service, or use the Service to menace or harass any person or cause damage or injury to any person or property; and
  - Client understands that any attempt to execute, or the execution of, any actions prohibited under this Section shall void the Agency’s warranty obligations, and be grounds for immediate suspension or termination of these Terms of Use by the Agency.
2. USER ACCESS. Except as otherwise set forth in these Terms of Use, Client hereby agrees that it shall neither make the Service available to any third party nor license, sublicense, sell, resell, rent, lease, transfer, distribute, or assign the Service to any third party. Client further understands and agrees that Client:
  - may designate only the number of Users allowed under these Terms of Use;
  - is prohibited, as well as its Users, from sharing user identifications and passwords with any unauthorized users and must notify the Agency if any such information becomes unsecured;
  - must use all commercially reasonable efforts to prevent any unauthorized access to or use of the Service, Documentation and passwords or other logins, and notify the Agency promptly of any such unauthorized use; and
  - shall not use the Service or Documentation for the benefit of any third parties.
SERVICE AVAILABILITY.
1. DEFINING AVAILABILITY. During the Term, the Agency will use commercially reasonable efforts to make the Service available at least 95% of the time during the Term of these Terms of Use (“Availability”), excluding when the Service is not available owing to an Exception (defined in 8.2 below).
2. SERVICE AVAILABILITY EXCEPTIONS. Downtime of the Service owing to any of the following events will not be included in calculating Availability (collectively, “Exceptions”):
  - Client’s or any of its Users’ failure to meet any minimum hardware or software requirements set forth in any specifications or Documentation provided by the Agency;
  - a lack of network availability between Client and the Agency’s hosting servers or other network traffic problems, as network availability can involve numerous third parties and is beyond the control of the Agency;
  - any downtime caused by the Agency’s internet provider or for any downtime that Client experiences because of Client’s own network connectivity issues;
  - Client’s or User’s misuse of the Service, including use in violation of the terms and conditions of these Terms of Use;
  - Any downtime caused by or attributable to Client’s change or upgrade of any hardware or software resulting in a temporary incompatibility; and
  - any Scheduled Downtime (defined in Section 8.3 below).
3. SCHEDULED DOWNTIME. From time to time the Agency may need to schedule downtime for maintenance, upgrades, enhancement, or any other reason, during which the Service will not be available to Client (collectively, “Scheduled Downtime”). The Agency may schedule such downtime at any time, but will endeavor to provide reasonable notice of any Scheduled Downtime and to conduct Scheduled Downtime outside of Client’s normal business hours.
4. UNAVAILABILITY PROCEDURE. If Client experiences a Service outage and is unable to access the Service, Client must notify the Agency within 5 business days of such outage in accordance with Section 19.2. The Agency will use an internal system to measure the Service’s availability to Client. Client agrees this system will be the sole basis for resolution of any dispute that may arise regarding Availability.
5. CREDIT POLICY. If Availability is not met in any given month, and the proper notification/steps were taken by Client as outlined in Section 8.4, then Client will receive a prorated credit towards future Service fees for that portion of the recurring Service fees corresponding to the amount of time in such month that Availability was not met.
TECHNICAL SUPPORT. To report a Service issue and/or to receive technical support, email tech@goldenproportions.com. The Agency offers technical and customer support on a first-come, first-served basis. The Agency’s technical support policies can be acquired by emailing tech@goldenproportions.com and are subject to review and change at any time without notice.
BILLING AND PAYMENT.
1. ACCOUNT INFORMATION. Client agrees to provide the Agency with accurate, complete and current billing and contact information, including the Client’s legal business name, street address, mailing address, email address, and telephone number. Client must promptly update this information should any changes occur. If Client’s information is false or fraudulent, the Agency reserves the right to suspend or terminate Client’s access to the Service, including terminating these Terms of Use, in addition to any other legal remedies.
2. BILLING. Client agrees (i) to pay all fees pertaining to use of the Service, and (ii) to comply with all billing, payment and other terms and conditions as specified in the SOW or the Legal Terms & Conditions. Client agrees to provide and purchase the Service from the Agency with a valid and updated credit card or through an ACH transaction, and authorizes the Agency to charge such credit card or initiate an ACH transaction for all Service. All payment obligations are non-cancelable and all fees paid are nonrefundable. Client shall reimburse the Agency for reasonable expenses related to providing any on-site portion of the Service or related support.
3. TAXES. Client understands Client is responsible for paying all taxes associated with Client’s purchases hereunder and understands that Client may be invoiced for such taxes in accordance with the billing procedures set forth in the SOW or Legal Terms & Conditions. Client agrees to pay any such sales, value-added or other similar taxes imposed by applicable law. The Agency is solely responsible for taxes assessable against it based on the Agency’s income, property, and employees.
4. OVERDUE FEES. All amounts invoiced hereunder are due upon receipt. If the Agency does not receive payment from Client within the 30 days (“Final Payment Due Date”), the Agency may at its sole discretion (i) charge late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the Final Payment Due Date until the date paid, and/or (iii) suspend the Service until such outstanding balance is brought current.
5. FEE CHANGES. The Agency reserves the right to introduce new fees during the Term of these Terms of Use or modify existing fees on the renewal of the Client’s Billing Period. The Agency will use best efforts to provide at least 30 days’ prior notice to Client before any new or modified fees are implemented. Any such new fees will be effective at the beginning of a future calendar month as designated in the notice provided or any such modified fees will be effective at the beginning of the billing period for the month following the month that notice was provided.
AGENCY INTELLECTUAL PROPERTY. The Agency and its licensors, if any, retain all right, title and interest, including all intellectual property rights therein, in and to the Service, all software offered or provided access to under these Terms of Use, all the Agency programs, and all Documentation and related materials. The Agency retains all right, title and interest, including all intellectual property rights therein, to anything developed and delivered under these Terms of Use. Other than the license rights granted in these Terms of Use, Agency does not convey to Client any other rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by the Agency. Client shall not use the Service to upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including but not limited to rights of publicity and privacy) without first obtaining the permission of the owner of such rights.
PROTECTION AND NONDISCLOSURE OF CONFIDENTIAL INFORMATION. From time to time during the Term of these Terms of Use, either party may disclose (as the “Disclosing Party”) or make available to the other party (as the “Receiving Party”) confidential information, whether orally or in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information shall include business affairs, price and Client lists, marketing strategies, confidential intellectual property, trade secrets, third-party confidential information for which the Disclosing Party has an obligation of confidentiality, technology and technical information, and these Terms of Use. Additionally, the Agency’s Confidential Information shall include the Service, its source code, the Documentation, the Aggregate Data, and any passwords and log-ins provided hereunder. The Client’s Confidential Information shall also include the Client Data. Each party acknowledges that a Disclosing Party’s Confidential Information constitutes such party’s valuable proprietary and confidential trade secrets, and that the unauthorized disclosure of such trade secrets or confidential information would cause great harm to the Disclosing Party. Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party of any of its representatives; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of the Receiving Party or its representatives prior to being disclosed by or on behalf of the Disclosing Party; (iv) was or is independently developed by the Receiving Party without reference to or use of, in while of in part, any of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed pursuant to applicable federal, state or local law, regulation or a valid order issued by a court of governmental agency of competent jurisdiction. In the event of any conflict between this Section and the provisions of the HIPAA Business Associate Agreement, the HIPAA Agreement provisions, rules and requirements shall prevail.
WARRANTIES AND DISCLAIMERS.
1. AGENCY WARRANTIES. The Agency warrants that (i) it has the right and power to enter into these Terms of Use, (ii) it will comply with any applicable laws and regulations pertaining to these Terms of Use, and (iii) the Service shall perform materially in accordance with the description provided by the Agency and in the SOW or any Documentation. Client’s sole remedy for the Agency’s breach of this Section 13.1 warranty is for the Agency to work to fix such Service performance issue and, if it cannot fix such Service performance issue within a commercially reasonable period of time, receive reimbursement of the amount that Client has paid to Agency for 1 month of Service.
2. CLIENT WARRANTIES. Client warrants that (i) it has the right and power to enter into these Terms of Use, and (ii) it will comply with any applicable laws and regulations pertaining to these Terms of Use.
3. DISCLAIMERS.
  THE EXPRESS WARRANTIES SET FORTH IN SECTION 13.3 ARE THE ONLY WARRANTIES MADE BY THE AGENCY WITH RESPECT TO THE SERVICE AND THESE TERMS OF USE. THE AGENCY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR USE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE AND ALL CONTENT IS PROVIDED TO CLIENT STRICTLY ON AN “AS IS,” “AS AVAILABLE” BASIS. THE AGENCY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT.THE AGENCY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (1) THE USE OF THE SERVICE BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (2) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (4) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CLIENT THROUGH THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, (5) ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (6) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
  
  CLIENT UNDERSTANDS THAT THE AGENCY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THEREFORE ACKNOWLEDGES AND AGREES THAT (1) THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES, (2) THE AGENCY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS, (3) THE CLIENT WILL BE RESPONSIBLE FOR ALL ELECTRONIC COMMUNICATIONS, (4) THE AGENCY SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE CLIENT DATA, AND THE AGENCY SHALL NOT BE RESPONSIBLE FOR COMPLIANCE WITH ANY APPLICABLE DATA PRIVACY RULES OR REGULATIONS IN THE COLLECTION, USE, PROCESSING, TRANSMITTAL OR STORAGE OF ANY CLIENT DATA.
INDEMNITY. You agree to indemnify, hold harmless and defend Agency and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents and network service providers at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by Agency arising out of or relating to your (a) violation or breach of any term of these Terms of Use or any policy or guidelines referenced herein, or (b) use or misuse of the Service.
LIMITATION OF LIABILITY.
1. LIMITATION ON RECOVERABLE DAMAGES. EXCEPT AS PROVIDED IN SECTION 15.3, NEITHER PARTY (INCLUDING SUCH PARTY’S EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, LICENSORS, SUBLICENSEES, SUCCESSORS, ASSIGNS AND RELATED PARTIES) HAS ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THESE TERMS OF USE OR OTHERWISE FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OF USE (INCLUDING CLAIMS FOR BUSINESS INTERRUPTION AND LOSS OF PROFITS, REVENUE, ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, DATA, GOODWILL OR USE OF THE SERVICE), WHETHER BASED IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. CAP ON DAMAGES. EXCEPT AS PROVIDED IN SECTION 13.3, THE AGENCY’S LIABILITY FOR ANY AND ALL CAUSES OF ACTION, CLAIMS AND DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OF USE SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID TO THE AGENCY BY CLIENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CAUSE OF ACTION ACCRUED.
3. EXCLUSIONS FROM LIMITATIONS OF LIABILITY. Notwithstanding anything to the contrary herein, the limitations of liability contained in Section 15.1 and 15.2 shall not apply to: (i) damages arising out of or relating to a Party’s failure to comply with its confidentiality obligations under Section 12; (ii) damages arising out of either Party’s misappropriation of the other Party’s intellectual property or breach of a license grant in Section 2; (iii) Client’s indemnification obligations under Section 14; or (iv) Client’s payment obligations to the Agency under these Terms of Use.
TERM, SUSPENSION AND TERMINATION.
1. TERM. These Terms of Use shall take effect on the Effective Date and shall continue until either party notifies the other party written notice of intent to terminate at least 30 days in advance before or unless these Terms of Use terminates as otherwise provided hereunder.
2. SUSPENSION. The Agency shall not be liable to Client or to any other third party for any suspension of the Service under this Section 16.2, and any suspension by the Agency under this Section 16.2 shall not excuse Client from Client’s obligations to make payment(s) under these Terms of Use. The Agency may, upon written notice to Client at any time, remove Client Data or suspend Client’s access to and use of the Service for the occurrence of any of the following, all of which are prohibited hereunder:
  - the Agency reasonably concludes that Client is using the Service to engage in denial of service attacks or spamming, or using the Service to engage in illegal activity or activity prohibited hereunder;
  - the Agency reasonably concludes that Client’s use of the Service is causing immediate, material and ongoing harm to the Agency or others; or
  - the Agency determines in its sole discretion that Client violated or continues to violate these Terms of Use.
3. TERMINATION. After written notice to the other party, these Terms of Use may be terminated:
  1. (i) by either party if the other party materially or persistently breaches these Terms of Use (other than a breach of Availability by the Agency, for which Client’s sole remedy is stated in Section 8 and either that breach is incapable of remedy, or the breaching party fails to remedy that breach within a 30 day period after receiving written notice thereof;
  2. (ii) by either party immediately if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction; if the other party makes a general assignment for the benefit of creditors; if the other party has been dissolved, wound up, or liquidated; if a receiver, trustee, or similar agent is appointed with respect to any substantial portion of the property or business of the other party, or by the Agency as provided in Section 10.1;
  3. (iii) by the Agency if Client fails to make payments to the Agency when due and the Agency provides at least one written notice 7 days prior to effective termination;
  4. (iv) by either party for its convenience upon 30 days’ written notice to the other party; or
  5. (v) by Client on 30 days’ written notice if the Client decides not to accept an new fees pursuant to Section 10.5, in which case the Client shall have the right to receive a pro-rata refund of the license fees paid under these Terms of Use for the terminated portion of the Billing Period.
4. EFFECT OF TERMINATION. If these Terms of Use is terminated for any reason, all licenses granted to Client hereunder shall cease and Client shall cease all activities authorized hereby. If these Terms of Use is terminated by the Agency as a result of a material breach under section 16.3(i), by the Agency for Client’s failure to make timely payments under Section 16.3(iv), or Client for its convenience under Section 16.3(v), then Client shall pay the Agency the remaining fees owed for the then-current Billing Period, including, but not limited to, all fees owed hereunder and subscription fees for the terminated portion of the Billing Period.
5. In the event these Terms of Use is terminated for any reason, the Agency shall make Client Data available to Client via the Service during the 30 day period following termination notice, if Client so requests. If Client makes no such request, the Agency shall have no obligation to maintain or provide any Client Data and reserves the right to remove or discard Client Data without notice to Client. The Agency may store Client Data for an additional 60 days and may, in exchange for a fee, permit Client access to the Service to retrieve Client Data. Client acknowledges and agrees that the Agency still has no obligation to retain Client Data after such 60-day period and that Client data may be irretrievably deleted thereafter.
HIPAA BUSINESS ASSOCIATE COMPLIANCE. As You are a Covered Entity (as defined by the HIPAA Rules) and Agency may create, receive, maintain, or transmit Electronic Protected Health Information (“EPHI”) or Personal Health Information (“PHI”) on your behalf, Agency is considered a Business Associate with regard to EPHI and PHI. As not all information received or maintained by Agency will be PHI or EPHI subject to the HIPAA Rules, this provision is only applicable regarding information that is received, maintained or created by Agency on your behalf and is PHI or EPHI but any information not protected by the HIPAA Business Associate Subcontractor Agreement will be protected by confidentiality provisions otherwise contained in these Terms of Use. With respect to any EPHI or PHI that Agency creates, receives, maintains or transmits on your behalf, the provisions of the HIPAA Business Associate Agreement are incorporated herein and made part hereof as is set forth in length.
GOVERNING LAW; VENUE. The parties agree that these Terms of Use shall be deemed to have been made and entered into in Northumberland County and the Commonwealth of Pennsylvania, and shall in all respects be interpreted, enforced and governed under the laws of Pennsylvania without regard to conflict of laws principles. The parties hereby waive any objections to the jurisdiction and venue of the courts in or for Northumberland County, Pennsylvania or the Federal District Court for the Middle District of Pennsylvania, including any objection to personal jurisdiction, venue, and/or forum non-conveniens, in any proceeding and by either party to enforce its rights hereunder filed in or for Northumberland County, Pennsylvania or the Federal District Court for the Middle District of Pennsylvania. The parties agree not to object to any action filed by a party to remove any action filed by a party from a forum or court not located in Northumberland County, Pennsylvania or the Federal District Court for the Middle District of Pennsylvania.
GENERAL PROVISIONS.
1. ASSIGNMENT. Client shall not assign or otherwise transfer any of its rights or obligations under these Terms of Use without the prior written consent of the Agency. The Agency may assign these Terms of Use without Client’s consent, including to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger or acquisition. Any prohibited assignment shall be null and void. These Terms of Use shall inure to the benefit of and shall be binding on the parties, their successors and permitted assigns of the parties. Any assignment by Agency in violation of this section or any actual or proposed change in control of Client shall entitle the Agency to terminate these Terms of Use for cause immediately upon written notice.
2. NOTICES. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties and contact persons as set forth in these Terms of Use. Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent an internationally recognized overnight courier (receipt requested); or (c) on the date sent by facsimile or e-mail (in each case, with confirmation of transmission), if sent during normal business hours of the recipient, and on the next day, if sent after normal business hours of the recipient.
3. INJUNCTIVE RELIEF. Client acknowledges and agrees that any breach of Section 2 (License Grant) and/or Section 12 (Confidentiality) may cause irreparable injury to the Agency for which there are no adequate remedies at laws. Therefore, in addition to any and all remedies available at law, the Agency shall be entitled to seek injunctive relief or other equitable remedies in all legal proceedings resulting from any threatened or actual violation of the provisions hereof without any obligation to post a bond.
4. SEVERABILITY. If any provision in these Terms of Use is in conflict with any applicable rule of law or statutory provision, or is deemed to be, or becomes invalid, illegal, void, or unenforceable under applicable laws, the Agency shall amend such provision to conform to applicable laws so as to be valid and enforceable, or if it cannot be so amended without materially altering the intention of the parties, it will be deleted, but the validity legality, and enforceability of the remaining provisions of these Terms of Use shall not be impaired or affected in any way. If such provisions comprise an integral part of the remainder of these Terms of Use, these Terms of Use will be terminated.
5. FORCE MAJEURE. Neither party shall be liable hereunder for any failure or delay in the fulfillment or performance of its obligations under the Agreement due to any circumstance beyond its reasonable control, including, for example, fire, flood, earthquake, other acts of nature, war, explosions, strike, riots, civil unrest, sabotage, acts of God, embargo, acts or regulations of governments or otherwise beyond the reasonable control of the affected party. The party so affected must give prompt notice to the other party.
6. AMENDMENT. These Terms of Use may be amended by the Agency in its sole discretion, with such amendment to begin at the start of a calendar month, by providing at least 30 days’ advance notice to Client by email to the registered email address provided for the administrator(s) for Client’s account. If Client does not accept the amendment, Client must notify the Agency within 15 days of such notice receipt and pay the Agency any outstanding recurring fees through the end of the calendar month immediately preceding the first month for which such amendments take place, in which case the end of such calendar month shall also be the termination date of these Terms of Use. Client’s failure to do both shall constitute agreement to the amended Agreement.
7. ENTIRE AGREEMENT. These Terms of Use, Documentation and information that is incorporated into the Agreement by written reference (including reference to information contained in a URL or referenced policy) constitute the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous agreements by and between the parties as well as all proposals, oral or written and all negotiations, conversation or discussions heretofore had between the parties related to the subject matter of these Terms of Use. The parties acknowledge that they have not been induced to enter into these Terms of Use by any representations of statements, oral or written, not expressly contained herein.
8. DELAY OR OMISSION NOT WAIVER. No delay or failure by either party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.
9. STATUTE OF LIMITATIONS. Except for actions for nonpayment or breach of the Agency’s proprietary rights, no actions, regardless of form, may be brought by either party arising out of or relating to the Service or these Terms of Use may be brought by either party more than 2 years after the cause of action has accrued.
10. RELATIONSHIP. These Terms of Use does not make either party the employee, partner, franchisee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations pursuant to these Terms of Use each party shall be acting as an independent contractor.
11. THIRD-PARTY SITES. The Agency has no control over and is not responsible for (i) any third-party websites, (ii) third party content provided on or through the Service, or (iii) the availability of such external websites or resources. The Agency does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. Client bears all risks associated with the access and use of such websites and third-party content, products and services, including those accessed through the Agency’s websites.
12. CLIENT REFERENCE. Client agrees (i) that the Agency may identify Client as a recipient of the Service and use Client’s logo in sales presentations, marketing materials, and press releases, and (ii) to develop a brief Client profile for use on Agency websites for promotional purposes.
13. FEEDBACK. The Client grants to the Agency a perpetual, royalty-free, irrevocable, world-wide license to use and incorporate into the Service any suggestions, ideas, modification requests, feedback or other recommendations related to the service provided by or on behalf of Client and otherwise agrees that it will not itself sue the Agency with respect to its use and incorporation of the same.
14. SURVIVAL. The termination or expiration of these Terms of Use shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable. The provision that s by their terms are intended to survive the expiration or termination of these Terms of Use, will survive the expiration or termination of these Terms of Use.