Terms of Service

1Introduction

By executing an order form (“Customer's Order”) to subscribe for TherapyPM services (the “Services”) or accessing or using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to TherapyPM that you have the authority to bind that organization to these Terms (in which case “Customer” or “you” will refer to that organization). You may use the Services only in compliance with these Terms.

2Governing Documents

Customer understands that in addition to these Terms, use of the Services is also governed by Customer's Order, the Business Associate Agreement, Pricing Policy, End of Life Policy, Supported Browser and Device Policy, and Privacy Policy (collectively “Additional Agreements”). The Additional Agreements are incorporated herein by reference and made a part of these Terms for all purposes.

In addition, Addendums setting forth additional terms and conditions specific to a Customer's geographic location (or particular services you may have purchased) may also apply, and are available on our Privacy Policy page (“Service Addendums”). You agree to review such Service Addendums and agree that any such Service Addendums applicable to you are binding and incorporated herein by reference.

In the event of any conflict or ambiguity between any of the documents that form the Service Agreement, said conflict or ambiguity shall be resolved by giving precedence to the documents in the following order:

1. Customer's Order;
2. Any applicable Service Addendums;
3. Terms of Service;
4. Business Associate Agreement; and
5. All other Additional Agreements.

Capitalized terms not otherwise defined herein in the Service Agreement shall have the meaning assigned to them in Customer's Order.

3Term, Termination and Retention of Data

Term

Unless the duration of the Services subscription is otherwise stated in Customer's Order, Customer's subscription to use the Services shall be for a twelve (12) month period, and fees for the Services shall be charged on a monthly basis, and shall automatically renew for additional twelve (12) month periods at the end of any term, unless and until terminated by either party upon written notice.

Termination for Material Breach

Unless otherwise stated in Customer's Order, either Party may terminate the Service Agreement during the Initial Term or any Renewal Term if the other Party materially breaches any term of the Service Agreement and does not cure the breach within thirty (30) days of receipt of written notice of such breach. For purposes of the Service Agreement, non-payment within forty (40) days of the date of an invoice constitutes a material breach.

Suspension or Termination of Service for Violation of Law

Notwithstanding the foregoing provisions of this Section 2, TherapyPMS may immediately suspend or terminate the Service and remove applicable Customer Content (as defined below) if TherapyPMS in good faith believes that, as part of using the Service, Customer may have violated a law, or any third-party rights. In addition, TherapyPMS may immediately suspend or terminate the Service and remove applicable Customer Content if directed to do so by law enforcement or other government body.

Transfer of Data

Customer acknowledges and accepts that Customer Information may be transferred to and stored in the United States for the purposes of providing the Services, and hereby explicitly authorizes TherapyPMS's processing of Customer Information in the United States. Customer warrants and represents it has all legal authority to transfer Customer Information to TherapyPMS in accordance with the terms of this Service Agreement.

4Use of Service

TherapyPM Responsibilities

• TherapyPM will work expeditiously to complete any implementation training set forth in the Customer's Order. However, Customer understands and agrees the implementation process is dependent on Customer's cooperation and attentiveness to requests for information, scheduling of training, and completion of the data import process.
• Data Import. Except as otherwise provided in the Pricing Policy, TherapyPM agrees to import Customer Content utilizing TherapyPM's import templates as a complimentary service one (1) time as part of execution of a new Customer Order. TherapyPM shall not be responsible for importing data that is not provided by Customer on TherapyPM's import templates in the required format.
• TherapyPM will use commercially reasonable efforts to provide customer support for the Services in accordance with its published customer support plans, or if applicable any specific support plan, to which Customer has subscribed.

Customer Responsibilities

Access by Employees and Independent Contractors; Per Seat License.

Customer may allow its employees and independent contractors to access the Services in compliance with these Terms and the applicable Customer Order, which access must be for the sole benefit of Customer. Customer is responsible for compliance with the Service Agreement by its employees and independent contractors. Customer acknowledges and agrees that the Services are provided exclusively on a per seat license basis.

Restrictions and Responsibilities.

• You will provide your employees and independent contractors with computer equipment, telecommunications, data connections, and other equipment necessary to access the internet and use the Services.
• Maintain confidentiality of user names, passwords, and account information, and use commercially reasonable efforts to prevent unauthorized use of the Services through your equipment.
• Notify TherapyPM promptly of any known or suspected unauthorized use of the Services or breach of security.

Data Handling

• Removal of Data from Platform. Customer understands that the intended HIPAA and other applicable privacy laws security of the Services is negated when data is removed from the platform. Customer is solely responsible for ensuring that all protected health information remains protected when it is exported, downloaded or otherwise removed from the Services.
• Accuracy of Information Provided by Customer. Customer represents and warrants to TherapyPM that all Customer Content, and other material provided under Customer's account, by Customer or on its behalf, is true, correct and accurate.
• Customer represents and warrants to TherapyPM that all Customer Content submitted to the Services does not infringe, misappropriate or otherwise violate any copyright, trade secret, privacy or other intellectual property or proprietary rights of any third party.
• It will not submit any Customer Content that is untrue, defamatory, harmful to any person, or violates HIPAA or any state, federal laws regarding protected health information or patient privacy or other applicable privacy laws.

Additional Terms

• Customer Content. Customer may upload or enter data, images, files or other content and information to the Services (“Customer Content”). As between TherapyPM and Customer, all Customer Content belongs to Customer, and Customer hereby grants TherapyPM a non-exclusive irrevocable, perpetual, royalty free license to display, store, distribute, share, modify and otherwise use such Customer Content to provide and improve the Services.
• Reminders and SMS Messages. Customer agrees that registering for or using the Services constitutes a request for TherapyPM to send transactional, informational, and marketing SMS communications including but not limited to appointment reminders, service updates, promotions, and practice-related announcements (collectively “SMS Services”). By providing a mobile number, Customer expressly opts into receiving such communications.
• To the extent that any of our Services collect geolocation data as part of the use of such Services, you hereby agree and consent to the collection and storage of such geolocation data.
• Reviews & Opinions. TherapyPM does not endorse, validate as accurate, or necessarily agree with any of the reviews, links and user generated content from users or customers on the Services provided by TherapyPM. TherapyPM reserves sole discretion to refuse to publish any patient review provided by Customer.
• TherapyPM reserves the right to place advertisements or messages from third parties on free claimed listings web pages as well as free versions of the Services.

Aggregation and De-Identified Data

Notwithstanding anything to the contrary contained in the Service Agreement, TherapyPM may use a Customer's Customer Information (including protected health information and personally identifiable information) to provide such Customer with data aggregation services (as that term is defined by HIPAA). In addition, TherapyPM may use protected health information and personally identifiable information that has been de-identified in accordance with HIPAA for any lawful purpose.

5Service Level Agreement / Disclaimers

Availability

TherapyPMS will use commercially reasonable efforts to maintain Services uptime of ninety-nine and a half percent (99.5%), excluding Services maintenance periods. TherapyPMS utilizes Amazon Web Services (AWS) and has no control over downtime because of AWS issues.

Services Maintenance

In order to maintain the operation of the Services, TherapyPMS conducts regularly scheduled maintenance and may conduct other maintenance at any time and without notice to Customer. Customer agrees any maintenance is for Customer's benefit in use of the Services and any delays in Services availability while maintenance is completed are an agreed upon consequence of utilizing the Services.

No Medical or Other Advice Provided by TherapyPMS

Customer expressly agrees that the Services, including any customer support, does not and shall not constitute providing business advice, billing advice, medical advice, medical or diagnostic services, or prescribing medication. Use of the Services is not a substitute for the business judgment, and professional judgment of health care providers in diagnosing and treating patients and operating a clinical practice.

Customer's Compliance With Medical Retention Laws, Privacy Laws And Patient Records Access

Customer is responsible for understanding and complying with all state, federal and applicable privacy laws related to retention of medical records, patient access to information and patient authorization to release data. Customer agrees that it will obtain any necessary patient consent prior to using the Services (including without limitation the patient portal portion of the Services) and will at all times maintain required consents.

Consulting Services

TherapyPMS may provide data conversions, customizations, program modifications, training, or other related consulting services (“Consulting Services”). Consulting Services shall be provided in accordance with an applicable Customer Order. Consulting Services may be delivered remotely or at your site.

6Confidentiality

Mutual Confidentiality

It is understood that each Party will likely receive confidential, proprietary and/or sensitive information (“Confidential Information”) from the other in conjunction with the Services contemplated by the Service Agreement. Each Party shall consider any information received from the other Party, whether written or verbal, as Confidential Information unless such information shall clearly and explicitly be designated as non-confidential by the disclosing Party.

No Other Purpose

TherapyPMS and Customer each agree not to use any Confidential Information disclosed to it by the other Party for any purpose other than those contemplated by the Service Agreement.

Required Parties and Limitation on Disclosure

Neither Party shall disclose or permit disclosure of any Confidential Information of the other Party to third parties or to employees of the Party receiving Confidential Information, other than directors, officers, employees, consultants, third-party service providers, and agents who are required to have the information for support of the purposes of the Service Agreement and are subject to obligations of confidentiality at least as protective as those contained herein.

Degree of Care

Each Party shall take all reasonable measures to protect the confidentiality of and avoid disclosure or use of Confidential Information of the other Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under these Terms to have any such information. Such measures shall include, but not be limited to, the highest degree of care that the receiving party utilizes to protect its own Confidential Information.

Return or Destruction of Confidential Information

Following termination of the Services Agreement and upon request of the disclosing Party, the receiving Party shall return or certify the destruction of any and all Confidential Information of the other Party then in its possession. The Party receiving such request will confirm in writing within ten (10) business days that it has complied with this requirement.

Exceptions to Confidential Information

Notwithstanding anything contained in this Section 5 to the contrary, the term “Confidential Information” shall not be deemed to include information which:

• is or subsequently becomes publicly available without the breach of any obligation owed to the disclosing party;
• prior to disclosure hereunder is within the possession of the receiving party, provided that such Confidential Information is not the subject of another confidentiality agreement with or other obligation of secrecy to the disclosing party;
• is disclosed with the prior written approval of the disclosing party;
• is independently developed by the receiving party without any breach of these Terms;
• is obligated to be produced under order of a court of competent jurisdiction or a valid administrative, congressional, or other subpoena, civil investigative demand or similar process, provided that upon issuance of any such order, the receiving party shall promptly notify the disclosing party so as to allow the potential opportunity to obtain a protective order; or
• is necessary to establish rights or enforce obligations under the Service Agreement.

7Proprietary Rights

Reservation of Rights by TherapyPMS

The Services and all software, workflow processes, user interface, designs, know-how and other materials and technologies included in or provided by TherapyPMS as part of the Services (“Proprietary Property”), including all Proprietary Property protected by copyrights, trademarks, or other intellectual property protections, are the sole and exclusive property of TherapyPMS and its licensors, and except as set forth in the Service Agreement, you have no right, title or license to use or exploit any Proprietary Property.

8Limits of Liability

Exclusion of Damages

Limit

In no event will the aggregate liability of TherapyPMS under or in connection with the service agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the amount paid by customer to TherapyPMS in the six (6) months immediately preceding the claim giving rise to such liability.

By accessing the TherapyPMS services subject to these terms of service, customer understands that customer is waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, customer acknowledges that customer has read and understood, and hereby expressly waives, the benefits of Section 1542 of the Civil Code of California and any similar law of any state or territory.

9Indemnity

Customer shall indemnify, defend, and hold harmless TherapyPMS, its affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any actual or threatened third party claims (including without limitation by governmental agencies), demands, damages, costs, penalties, fines, regulatory actions and expenses (including reasonable attorneys' fees and costs) arising from or related to:

• the use of the Services by Customer;
• Customer's breach of any term in the Service Agreement;
• any actual or threatened claim that Customer Content infringes on a third-party's intellectual property rights;
• any unauthorized use, access or distribution of the Services by Customer; or
• violation of any individual's privacy rights related to information submitted under Customer's account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer's account or by or on behalf of Customer.

10Governing Law and Arbitration

Governing Law and Venue

The Service Agreement is governed by the internal laws of the State of Texas, without regard to its conflicts of law principles, in accordance with the Texas Civil Practice and Remedies Code. Subject to the further provisions of this Section 9, the parties expressly agree that the state and federal courts located in Travis County, Texas shall have exclusive jurisdiction over any action arising out of the Service Agreement.

General Arbitration Process

Any dispute or claim arising out of or relating to this Service Agreement or the use of or access to the Services (each, a “Claim”) shall be resolved exclusively through final and binding arbitration administered by the American Arbitration Association (AAA) in accordance with its then-current Commercial Arbitration Rules. The arbitration shall take place in Travis County, Texas.

Enforcement and Equitable Relief

Notwithstanding Section 9.b., TherapyPMS may enforce its rights under this Service Agreement, including without limitation, to collect any overdue invoiced amounts, in any court of competent jurisdiction in the State of Texas pursuant to the Texas Civil Practice and Remedies Code.

In addition, TherapyPMS reserves the right to seek and obtain injunctive or equitable relief, including but not limited to temporary restraining orders or preliminary injunctions, in any court of competent jurisdiction in Travis County, Texas without the need to first engage in arbitration, as permitted under Texas law.

11Other Terms