THIS SERVICES AGREEMENT (“AGREEMENT“) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU AND CAREDOX, INC. (“CareDox,“ “US“, OR “WE“). BY CHECKING THE BOX INDICATING YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU (A) AGREE TO BE BOUND BY THIS AGREEMENT; AND (B) REPRESENT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS AND ARE OF THE LEGAL AGE OF MAJORITY IN THE JURISDICTION IN WHICH YOU RESIDE (AT LEAST EIGHTEEN (18) YEARS OF AGE IN MANY STATES). IN ADDITION, IF THIS AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AGREEMENT. YOU SHOULD PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS BY USING THE PRINT FUNCTIONALITY IN YOUR BROWSER. IF YOU DO NOT CHECK THE BOX INDICATING YOUR AGREEMENT TO THESE TERMS AND CONDITIONS, YOU MAY NOT PROCEED WITH REGISTRATION OR OTHERWISE RECEIVE THE SERVICES DESCRIBED BELOW.
1. Services. Subject to the terms and conditions of this Agreement and your payment of any relevant fees, we will provide you a al personal health record system that adheres to the security standards established by the Health Insurance Portability and Accountability Act (“HIPAA“) for your children that includes an electronic form for easy health information collection, an administrative tool to view and manage the status of the health information collection process, and a module for you to share health records with health care professionals and family members, and medical bracelets for children with allergies. (collectively, the “Services“).
2. Restrictions. You may only use the Services as described on our Web site and in any applicable documentation. Any breach of this Agreement by you or your agents will constitute a breach by you. Except as expressly authorized by this Agreement, you will not (and will not allow any third party to): (i) permit any third party to access and use the Services; (ii) decompile, disassemble, or reverse engineer the Services, except to the extent expressly authorized under the law; (iii) use the Services or any of our confidential information to develop a competing product or service; or (iv) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Services for the benefit of any third party.
3. Use of the Services. You may not use the Services to:
(a) Upload, post, e-mail or otherwise transmit any content that is unlawful, harmful, threatening, intimidating, abusive, harassing, tortuous, defamatory, derogatory, vulgar, obscene, libelous, invasive of another’s privacy, disrespectful, hateful, or racially, ethnically or otherwise objectionable;
(b) Upload, post, e-mail or otherwise transmit any content that is harmful or objectionable to minors in any way;
(c) Impersonate any person or entity or falsely state or otherwise misrepresent their affiliation with a person or entity;
(d) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
(e) Upload, post, e-mail or otherwise transmit any content that you do not have the right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) Upload, post, e-mail or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(g) Upload, post, e-mail or otherwise transmit any material that contains software viruses or worms or any other computer code, files or programs designed to disable, interrupt, destroy, redirect, monitor another user’s usage, limit or otherwise inhibit the functionality of any computer software or hardware or telecommunications equipment;
(h) Disparage the products or services of any company or individual;
(i) Use racially or ethnically offensive language; discuss or incite illegal activity; use explicit/obscene language or solicit/post sexually explicit images;
(j) Interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; or
(k) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation.
4. Proprietary Rights. You acknowledge that all Services are protected by intellectual property rights, as applicable, of CareDox and its vendors/licensors and that you have no rights to transfer or reproduce the Services or prepare any derivative works with respect to, or disclose confidential information pertaining to, the Services. Under no circumstances will you be deemed to receive title to any portion of any Services, title to which at all times will vest exclusively in us and our licensors. This is not a “work made for hire“ agreement, as that term is defined in Section 101 of Title 17 of the United States Code (“the Copyright Act“). You will preserve all Services from any liens, encumbrances, and claims of any individual or entity. You will not use any of our information or data to contest the validity of any of our intellectual property or our licensors. Any such use of our information and data will constitute a material, non-curable breach of this Agreement.
5. Your Data. You grant us a non-exclusive, world-wide, royalty-free license to use the documents, information, graphics, data, content, and other materials input by you into the Services (the “Customer Data“) for purposes of performing this Agreement. You will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to us for use as contemplated under this Agreement. Except for the license granted in this Section, nothing contained in this Agreement will be construed as granting us any right, title, or interest in the Customer Data. You grant us a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from your use of Services (the “Aggregated Data“) for our business purposes, including the provision of products and services to our customers; provided the Aggregated Data is combined with similar data from our other customers and does not include (directly or by inference) any information identifying you or any identifiable individual. The Aggregated Data will not be considered your Confidential Information. You also grant us a non-exclusive, perpetual, irrevocable, fully paid-up royalty-free license to use and disclose Customer Data for research purposes, provided such research studies have been approved by an Institutional Review Board, as appropriate, and CareDox enters into a Data Use Agreement with the researcher, as appropriate, that ensures that your Customer Data will be protected and will be used only for approved research purposes.
6. Feedback. You may provide us with suggestions, comments or other feedback (collectively, “Feedback“) with respect to our products and services, including the Services. Feedback is voluntary and we are not required to hold it in confidence. We may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant us an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with our business, products, and services, including the enhancement of the Services.
7. Sharing of Your Data. Except as set forth in Section 5, you have control over who may access Customer Data. If you share content in public areas of the Services or make your Customer Data available to others who you have chosen, you agree that anyone you have shared content with may use, save, reproduce, distribute, display, and transmit your Customer Data in connection with your use of the Services.
9. Fees. If you elect Services for which a charge is imposed, you are obligated to pay those fees. All fees are non-refundable. Late payments will be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum amount permitted under applicable law. You are responsible for paying all personal property, sales, use and other taxes (excluding taxes based upon our net income) and license and registration fees and other assessments or charges levied or imposed by any governmental body or agency as a result of the execution or performance of this Agreement, including your receipt of the Services. We may change the fees for the Services at any time on notice to you.
10. Your Warranties. You represent and warrant that (i) you have full power, capacity, and authority to enter into this Agreement and to grant the license in Section 4 (Proprietary Rights); (ii) your use of the Services will be in compliance with all applicable local, state, and federal laws and regulations; and (iii) the information you have provided us for purposes of creating your account is true and correct and that you will promptly notify us of any changes.
11. No Medical Advice. The content of the CareDox website and all associated products and services, including all communications and information made available through the foregoing, do not constitute professional medical advice, diagnosis, treatment or recommendations of any kind. CareDox does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be included on the Site, associated services, and mobile apps. Registered users of CareDox are solely responsible for the accuracy of all patient care made available through the foregoing. Reliance on any information appearing on the Site, and associated services and applications, whether provided by CareDox, the Customers, its content providers, or visitors to the Site or others, is solely at your own risk.
12. Indemnification. You will defend and indemnify CareDox and hold it and its affiliates, officers, directors, employees, and agents harmless from any and all claims, actions, proceedings, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees and all related costs and expenses) incurred by them as a result of any claim, judgment, or adjudication related to or arising from any or all of the following: (i) your use of the Services; and (ii) breach of any of your obligations, representations, or warranties in this Agreement.
13. Suspension of Services and Removal of Customer Data. We may, in our sole discretion, suspend your access to the Services or remove any Content for any of the following reasons: (i) to prevent damages to, or degradation of, the Services; (ii) to comply with any law, regulation, court order, or other governmental request; and (iii) to otherwise protect us from potential legal liability. We will restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on us to monitor use of the Services.
14. Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS“ AND “AS-AVAILABLE,“ WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. CAREDOX AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR TITLE/NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT USE OF SERVICES, IS AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CAREDOX OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CAREDOX’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT CAREDOX AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE THE CONTENT, WEB SITES, COMPUTERS, OR NETWORKS. WE WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES.
15. Limitation of Liability and Damages. NEITHER CAREDOX NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF THE SERVICES EVEN IF CAREDOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF CAREDOX AND ITS VENDORS AND LICENSORS TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT) WILL NOT EXCEED THE TOTAL FEES YOU PAID, IF ANY, DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES PROVIDED ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
16. Term. The initial term (“Initial Term“) of this Agreement will begin on the Effective Date and will continue thereafter for one (1) year. Thereafter, the Agreement will automatically renew for successive one year terms (each a “Renewal Term“), unless either party gives written notice to the other of its intent not to renew at least sixty (60) days prior to the expiration of the then current term. The Initial Term and any Renewal Terms are referred to, collectively, as the “Term.“
17. Termination. This Agreement will terminate (i) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; (ii) upon written notice by either party, immediately, if (a) a receiver is appointed for the other party or its property; (b) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (c) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof; or (iii) on sixty (60) days’ notice from us in the event we cease providing the Services generally to our customers. If use of the Service or any portion of them becomes, or in our discretion is likely to become, the subject of an intellectual property infringement claim, we may, in its discretion, (i) procure the right for you to continue to use the Service; (ii) replace or modify the Service with one of comparable quality and performance capabilities; or (iii) terminate this Agreement and refund the prorated portion of any prepaid, unused recurring fees. From and after termination, you will immediately pay all due sums owed to us.
18. General Provisions.
18.1 Affiliates, Subcontractors and Vendors. Some or all of the Services, including support, may be provided by our affiliates, agents, subcontractors and information system vendors. Our rights and obligations may be, in whole or in part, exercised or fulfilled by the foregoing entities.
18.2 Force Majeure. Except for the payment of fees, as described in Section 6 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
18.3 Entire Agreement; Amendment. This Agreement provides the entire agreement between the parties with regard to its subject matter. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement. Except as provided below, this Agreement may not be amended without a writing signed by both parties. We may, at any time and from time-to-time, change the terms of this Agreement. Any changes will be posted on our Web site. In addition, we may also send you a notice about the amended terms via email. If you do not accept the terms of any modification, your only recourse is to terminate this Agreement by sending a termination notice us before the effective date of the amendments. The termination will be effective on the date we receive the notice. The most current version of the Agreement will be available on our Web site and will supersede all previous versions of the Agreement. Your continued use of the Services will constitute your acceptance of the changes.
18.4 Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of California, without reference to its conflict of laws rules. Any action at law or in equity arising out of or directly or indirectly relating to this Agreement may be instituted only in the Federal or state courts located in San Francisco, California. You consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this Agreement, and to extra-territorial service of process. No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen.
18.5 Assignment. You may not assign this Agreement without the prior written consent of CareDox.
18.6 Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
18.7 Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
18.8 Survival. The following provisions will survive termination or expiration of this Agreement: 4 (Proprietary Rights), 12 (Indemnification), 14 (Disclaimer of Warranties), 15 (Limitation of Liability and Damages), 17 (Termination), and 18 (General Provisions).
18.9 Electronic Signatures – Binding. This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and your acceptance will be deemed binding between us. Neither of us will contest the validity or enforceability of this Agreement and any related documents, including under any applicable statute of frauds, because they were accepted or signed in electronic form. Neither of us will contest the validity or enforceability of a signed facsimile copy of this Agreement on the basis that it lacks an original handwritten signature. Electronically maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.