THIS IS A BINDING AGREEMENT between House Calls of Arizona, LLC an Arizona Corporation ("we" or "us") and you, as a user of our on-line patient care information system (the "System"). BY LOGGIN ON OR CLICKING "CREATE ACCOUNT" OR THROUGH THE CONTINUED USE OF THE SYSTEM, YOU ARE UNDERTAKING LEGAL OBLIGATIONS AND CONFERRING LEGAL RIGHTS. Please read this agreement carefully, and do not click "Sign up" or continue use of the System unless you agree fully with its terms. You and we are collectively referred to as the "Parties."
1. Agreement.
For the purposes of this Agreement, the terms set forth in this section have the meanings assigned to them below. Terms not defined below (whether or not capitalized) have the definitions given them in HIPAA, unless the context requires otherwise:
"Authorized Workforce" means those members of your Workforce who are individually authorized by you and us to have access to the System to assist you in providing treatment and obtaining payment for treatment, and to whom we have assigned a unique identifier for access to the System.
"Confidential Information" means any information concerning our business, financial affairs, current or future products or technology, trade secrets, workforce, customers, or any other information that is treated or designated by us as confidential or proprietary, or would reasonably be viewed as confidential or as having value to our competitors. Confidential Information shall not include information that we make publicly available or that becomes known to the general public other than as a result of a breach of an obligation by you. Confidential Information does not include individuals' health information.
2. Grant of Right to Use Services.
2.1 We grant to you and you accept a non-exclusive, personal, nontransferable, limited right to have access to and to use the System, and a non-exclusive, personal, nontransferable, limited license to use any computer software furnished by us for access to or use of the System, for the purpose of obtaining the Services during the Term, subject to your full compliance with the terms and conditions set forth in this Agreement and with our Policies and Procedures. You will not: (a) use the System for time-sharing, rental or service bureau purposes; (b) make the System, in whole or in part, available to any other person, entity or business; (c) copy, reverse engineer, decompile or disassemble the System, in whole or in part, or otherwise attempt to discover the source code to the software used in the System; or (d) modify the Services or the System or associated software or combine the Services or the System with any other software or services not provided or approved by us. You will obtain no rights to the System except for the limited rights to use the System expressly granted by this Agreement.
3. Access to the System.
3.1 Verification. You agree that your use of the System is subject to verification by us of your identity and credentials as a health care practitioner, and to your ongoing qualification as such. You agree that we may use and disclose your Personal Information for such purposes, including (without limitation) making inquiry of third parties concerning your identity and professional and practice credentials. You authorize such third parties to disclose to us such information as we may request for such purposes, and you agree to hold them and us harmless from any claim or liability arising from the request for or disclosure of such information. You agree that we may terminate your access to or use of the System at any time if we are unable at any time to determine or verify your qualifications or credentials.
3.2 Permitted Uses. Subject to the terms of this Agreement, we authorize you to access the System and to use the Services for the care and treatment of patients, and for other purposes expressly authorized in our Policies and Procedures; provided that, except as expressly authorized in our Policies and Procedures, (i) you may access only information pertaining to individuals with whom you have a treatment relationship or for whom a provider who has a treatment relationship with has requested a professional consultation from you, or from whom you have received authorization to use their health information; and (ii) you may use only the minimum necessary information for payment purposes. You agree that you will not access the System or use the Services for any other purposes. In particular:
3.2.1.1 You will not reproduce, publish, or distribute content in connection with the System that infringes any third party's trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right;
3.2.1.2 You will comply with all applicable laws, including laws relating to maintenance of privacy, security, and confidentiality of patient and other health information and the prohibition on the use of telecommunications facilities to transmit illegal, obscene, threatening, libelous, harassing, or offensive messages, or otherwise unlawful material;
3.2.1.3 You will not: (a) abuse or misuse the System or the Services, including gaining or attempting to gain unauthorized access to the System, or altering or destroying information in the System except in accordance with accepted practices; (b) using the System or Services in a manner that interferes with other Users' use of the System; or (c) using the System or the Services in any manner that violates our Policies and Procedures; (d) or use any ad blocking mechanism, device, or tool to prevent the placement of advertisements in the System or the Service .
3.4 Safeguards.
3.4.1 You will implement and maintain appropriate administrative, physical and technical safeguards to protect information within the System from access, use or alteration from Your Site or using a User ID assigned to you or a member of your Workforce. Such safeguards shall comply with federal, state, and local requirements, including the Privacy Rule and the Security Rule, whether or not you are otherwise subject to HIPAA. You will maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your Workforce to transmit, store and process electronic health information through the use of the System.
3.4.2 You will immediately notify us of any breach or suspected breach of the security of the System of which you become aware, or any unauthorized use or disclosure of information within or obtained from the System, and you will take such action to mitigate the breach or suspected breach as we may direct, and will cooperate with us in investigating and mitigating the breach.
3.5 Location of Access. You and your Authorized Workforce are authorized to access the System solely from Your Site, and from other sites from which you have received approval from us to access the System.
3.6 Compliance. You will comply with the terms of this Agreement, our Policies and Procedures, and all applicable laws and regulations. You will be solely responsible for the use of the System by you and your Workforce, and shall indemnify us and hold us harmless from any claim, cost or liability arising from such use, including reasonable attorneys' fees.
3.7 User Identification. We authorize you and your Authorized Workforce to use the User IDs assigned to you by us. You acquire no ownership rights in any User ID, and User IDs may be revoked or changed at any time in our sole discretion. You will adopt and maintain reasonable and appropriate security precautions for User IDs to prevent their disclosure to or use by unauthorized persons. Each member of your Authorized Workforce shall have and use a unique identifier. You will use your best efforts to ensure that no member of your Workforce uses a User ID assigned to another person.
3.8 No Third-Party Access. Except as required by law, you will not permit any third party (other than your Authorized Workforce) to have access to the System or to use the Services without our prior written agreement. You will promptly notify us of any order or demand for compulsory disclosure of health information if the disclosure requires access to or use of the System. You will cooperate fully with us in connection with any such demand.
3.9 Your Workforce.
3.9.1 You may permit your Authorized Workforce to use the System and the Services on your behalf, subject to the terms of this Agreement. You will
3.9.1.1 obtain a unique User ID from us for each member of your Authorized Workforce;
3.9.1.2 train all members of your Authorized Workforce in the requirements of this Agreement and the Policies and Procedures relating to their access to and use of the System and the Services, and ensure that they comply with such requirements;
3.9.1.3 take appropriate disciplinary action against any member of your workforce who violates the terms of this Agreement or the Policies and Procedures;
3.9.1.4 ensure that only you and your Authorized Workforce access the System from Your Site;
3.9.1.5 immediately notify us of the termination of employment of any member of your Authorized Workforce, or of your withdrawal of authorization for any such person to access the System.
4. Use of Information.
4.1 Purpose of System. The purpose of the System is to transmit patient Health Information and (i) to make it available to you and your Authorized Workforce; (ii) to facilitate the sharing of individuals' health information among Users. You may make Your Health Information accessible to other Users and to your patients through the System for these purposes. You authorize us, as your business associate, to use and disclose Your Health Information as follows, subject to the recipient's agreement to comply with our Policies and Procedures and with applicable laws and regulations relating to the use and disclosure of health information.
4.1.1 We may permit access to Your Health Information to you and your Authorized Workforce.
4.1.2 We may permit access to Your Health Information to your patients to whom you have agreed to grant access through our portal.
4.1.3 We may permit access to Your Health Information by health care providers and their business associates for treatment. You acknowledge that once we have granted access rights to another provider, we have no control over the uses and disclosures that the provider makes of Your Health Information.
4.1.4 We may disclose or permit access to Your Health Information to health plans, health care clearinghouses, medical groups, independent practice associations and other parties responsible for payment and their business associates for the purpose of obtaining payment for services you provide, unless you advise us in writing that the patient has paid out of pocket in full for the service to which the Health Information relates, and has requested that it not be disclosed to his or her health plan.
4.1.5 We may De-Identify Your Health Information and Your Personal Information, and use and disclose De-Indentified Information
4.1.6 We may create limited data sets from Your Health Information, and disclose them for any purpose for which you may disclose a limited data set; and you hereby authorize us to enter into data use agreements on your behalf for the use of limited data sets, in accordance with applicable law and regulation.
4.1.7 We may aggregate your health information with that of other users, and share aggregated information among Users.
4.1.8 We may use Your Health Information for the proper management and administration of the System and our business, and to carry out our legal responsibilities. We may also disclose Your Health Information for such purposes if the disclosure is required by law, or we obtain reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the recipient, and the recipient notifies us of any instances of which it is aware in which the confidentiality of the information has been breached. Without limiting the foregoing, we may permit access to the system by our contracted system developers under appropriate confidentiality agreements.
4.1.9 We may use or disclose Your Health Information for other purposes, as from time to time described in our Policies and Procedures; provided that we will not make or permit any such use or disclosure that would violate applicable law or regulation if made by you or your business associate.
4.2 Responsibility for Misuse by Other Users. You acknowledge that in granting access to the System for the purposes set forth in section 4.1, we will rely on the assurances of the recipients of the information as to (i) their identity and credentials, (ii) the purposes for which they are accessing the system, and (iii) the nature and extent of the information to which they will have access. You acknowledge that, while the System will contain certain technical safeguards against misuse of the System, it will rely to a substantial extent on the representations and undertakings of Users. You agree that we will not be responsible for any unlawful access to or use of Your Health Information by any User resulting from the User's misrepresentation to us, or breach of the User's user agreement or our Policies and Procedures.
4.3 Specially Protected Information. We apply the standards of the Privacy Rule in permitting access to the System. You acknowledge that other federal and state laws impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals. You agree that you are solely responsible for ensuring that Your Health Information may properly be disclosed for the purposes set forth in section 4.1, subject only to the restrictions of the Privacy Rule. In particular, you will:
4.3.1 not make available through the System any information subject to any restriction on use or disclosure (whether arising from your agreement with the individual or under law), other than the general restrictions contained in the Privacy Rule;
4.3.2 obtain any necessary consents, authorizations or releases from individuals required for making their health information available through the System for the purpose set forth in section 4.1;
4.3.3 include such statements (if any) in your notice of privacy practices as may be required in connection with your use of the System;
4.3.4 not place in the System any information that the you know or have reason to believe is false or materially inaccurate.
5. Individuals' Rights.
You shall be solely responsible for affording individuals their rights with respect to Your Health Information, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the System other than Your Health Information.
6. Business Associate Provisions.
In maintaining, using and affording access to Your Health Information in accordance with this Agreement, we will:
6.1 Not use or further disclose the information except as permitted or required by this Agreement or as required by law;
6.2 Use appropriate safeguards to prevent use or disclosure of the information other than as provided for by this Agreement, including administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the information;
6.3 Report to you any use or disclosure of the information not provided for by this Agreement of which we become aware, or any security incident as a result of which we determines that unauthorized access has been obtained to Your Health Information;
6.4 Ensure that any of our agents or subcontractors to whom we provide Your Health Information for purposes of assisting us in providing the System or the Services, agrees to the same restrictions and conditions that apply to us with respect to such information, including the obligation to implement reasonable and appropriate safeguards to protect it (it being understood that other Users of the System are not our agents or subcontractors);
6.5 Make available protected health information in accordance with § 164.524 of the Privacy Rule;
6.6 Make available protected health information for amendment and incorporate any amendments to protected health information.
6.7 Make available the information required to provide an accounting of disclosures.
6.8 Make our internal practices, books, and records relating to the use and disclosure of protected health information received from, or created or received by us on your behalf available to the Secretary of the United States Department of Health and Human Services for purposes of determining your compliance with the Privacy Rule
6.9 At termination of this Agreement we will provide you with a copy of Your Health Information in an electronic form that is accessible through commercially available hardware and software. You may have to purchase such hardware and software from third parties in order to access your data, and you may have to configure your systems in order to use your data in your practice. Upon termination we will, if feasible, return or destroy all protected health information received from, or created or received by us on your behalf that we still maintain in any form, and retain no copies of such information; or, if such return or destruction is not feasible, extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible. You acknowledge that it will likely be infeasible to segregate Your Health Information for removal from the System, and that if you have approved another user to have access to any of your on-line records through Chart Share, we will maintain a version of those records through the time you withdraw your approval, and we will continue to make those records available to the approved (or formerly approved) user. You acknowledge that you may have to purchase proprietary software in order to access such information.
6.10 We will report to you the discovery of any breach of unsecured Protected Health Information that we access, maintain, retain, modify, record, store destroy or otherwise hold, use or disclose on your behalf, in compliance with the requirements of Section 13402 of the HITECH Act and the regulations promulgated thereunder (45 CFR Parts 160 and 164, Subpart D).
7. Computer Systems.
You will acquire, install, configure and maintain all hardware, software and communications systems necessary to access the System (your "Implementation"). Your Implementation will comply with the specifications from time to time established by us. You will ensure that your Implementation is compatible with the System and Services. If we notify you that your Implementation is incompatible with the System, you will eliminate the incompatibility, and we may suspend Services to you until you do so.
7.1. Use of Cookies.
We use cookies to make our site work. By logging on to our service you agree to our website's cookie use as described below.
Cookies are small pieces of text sent to your browser by a website you visit. They help that website remember information about your visit, which can both make it easier to visit the site again and make the site more useful to you. Cookies and other technologies as described throughout this page can be used for the purposes described below.
The CareLink service uses Cookies and similar technologies to distinguish you from other users and to facilitate navigation and other capabilities of our service. Your acceptance of cookies is required to use using our service.
Types of Cookies used by CareLink
Some or all of the cookies or other technologies described below may be stored in your browser, app, or device. You can manage cookies in your browser (though browsers for mobile devices may not offer this visibility). Other technologies used to identify apps and devices may be managed in your device settings or in an app’s settings.
Functionality
Cookies and other technologies used for functionality allow you to use features that are fundamental to our service. Things considered fundamental to a service include site settings, preferences, information relating to your session and locality, and product customizations.
Some cookies and other technologies are used to maintain your preferences. For example, most people who use CareLink services have a cookie called PHPSESSID in their browsers, Other Cookies used begin with “MM_”. Each ‘MM_’ cookie expires within 12 hours.
Other cookies are used to maintain and enhance your experience during a specific session. For example, the ‘last10patients’ cookie to store information about your last view patients. The cookie ‘ts’ helps maintain your browser session.
Security
Cookies and other technologies used for security help to authenticate users, prevent fraud, and protect you as you interact with a service.
The cookies and other technologies used to authenticate users help ensure that only the actual owner of an account can access that account. For example, a cookies called ‘qid’ contain digitally signed and encrypted records of a user’s CareLink Account. This cookies allows CareLink to block many types of attack, such as attempts to steal the content of forms submitted in CareLink services or unallowed site navigation.
Analytics
Cookies and other technologies used for analytics help collect data that allows services to understand how you interact with a particular service. These insights allow services to both improve content and build better features that enhance your experience.
Some cookies and other technologies help sites and apps understand how their visitors engage with their services. For example, CareLink us a 3rd party Analytics Service which uses a set of cookies to collect information and report site usage statistics without personally identifying individual visitors. ‘_ga’, the main cookie used by this analytics, enables a service to distinguish one visitor from another and lasts for 2 years. CareLink 3rd Party Analytics Services also uses the ‘_ga’ cookie. Each ‘_ga’ cookie is unique to the specific property, so it cannot be used to track a given user or browser across unrelated websites.
Managing Cookies in your Browser
Most browsers allow you to manage how cookies are set and used as you’re browsing, and to clear cookies and browsing data. Also, your browser may have settings letting you manage cookies on a site-by-site basis.
For example, Chrome’s settings at chrome://settings/cookies allow you to delete existing cookies, allow or block all cookies, and set cookie preferences for websites. the Chrome Browser also offers Incognito mode, which deletes your browsing history and clears cookies on your device after you close your Incognito windows.
In FireFox you can manager your Cookies as follows:
and select Settings.For instructions on how to manage cookie settings for certain tasks, see:
Managing other technologies in your apps and devices
Most mobile devices and applications allow you to manage how other technologies, such as unique identifiers used to identify a browser, app or device, are set and used. For example, the Advertising ID on Android devices or Apple’s Advertising Identifier can be managed in your device’s settings, while app-specific identifiers may typically be managed in the app’s settings.
8. Third-Party Sites and Service Providers.
The System may contain hyperlinks to Internet web sites operated by third parties, or to materials or information made available by third parties. Such third parties may offer goods or services for sale to you. Such links do not constitute or imply our endorsement of such third parties, or of the content of their sites, the quality or efficacy of their goods or services, or their information privacy or security practices, and we have no responsibility for information, goods or services offered or provided by such third parties, or for the manner in which they conduct their operations. Your use of third-party sites and the materials, goods and services offered by them is entirely at your own risk, and is subject to the terms of use of the third parties operating or providing them. You should assume that any Internet page or other material that does not bear the CareLink logo is provided by a third party.
9. Confidential Information.
9.1 You may not disclose our Confidential Information to any other person, and you may not use any Confidential Information except for the purpose of this Agreement. Except as otherwise provided in this Agreement, you may not, without our prior written consent, at any time, during or after the Term of this Agreement, directly or indirectly, divulge or disclose Confidential Information for any purpose or use Confidential Information for its own benefit or for the purposes or benefit of any other person. You agree to hold all Confidential Information in strict confidence and to take all measures necessary to prevent unauthorized copying, use, or disclosure of Confidential Information, and to keep the Confidential Information from falling into the public domain or into the possession of persons not bound to maintain its confidentiality. You will disclose Confidential Information only to members of your Workforce who have a need to use it for the purposes of this Agreement. You will inform all such recipients of the confidential nature of Confidential Information and will instruct them to deal with Confidential Information in accordance with the terms of this Agreement. You will promptly advise us in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information by any person, which may come to your attention.
9.2 You agree that we will suffer irreparable harm if you fail to comply with its obligations set forth in this Section 13, and you further agree that monetary damages will be inadequate to compensate us for any such breach. Accordingly, you agree that we will, in addition to any other remedies available to us at law or in equity, be entitled to the issuance of injunctive relief to enforce the provisions hereof, immediately and without the necessity of posting a bond.
10. Disclaimer, Exclusion of Warranties, and Limitation of Liability.
10.1 Carrier Lines. YOU ACKNOWLEDGE THAT ACCESS TO THE SYSTEM WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, "CARRIER LINES") OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.
10.2 No Warranties. ACCESS TO THE SYSTEM AND THE INFORMATION CONTAINED ON THE SYSTEM IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SYSTEM OR THE INFORMATION IN THE SYSTEM, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL WE BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, OR LOSS OF INFORMATION OR DATA, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF WE HAVE BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. WE DISCLAIM ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS AND LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION SERVICE PROVIDERS OR THE SYSTEM.
10.3 Conditions for Breach. We will not be deemed to be in violation of this Agreement unless you have first have given us written notice specifying the nature of the default, and we have failed within thirty (30) days of receipt of the notice either to cure the default or, if cure within such period is not practicable, to be diligently proceeding to cure the default.
10.4 Other Users. YOU ACKNOWLEDGE THAT OTHER USERS HAVE ACCESS TO THE SYSTEM AND ARE RECEIVING OUR SERVICES. SUCH OTHER USERS HAVE COMMITTED TO COMPLY WITH OUR POLICIES AND PROCEDURES CONCERNING USE OF THE SYSTEM; HOWEVER, THE ACTIONS OF SUCH OTHER USERS ARE BEYOND OUR CONTROL. ACCORDINGLY, WE DO NOT ASSUME ANY LIABILITY FOR OR RELATING TO ANY IMPAIRMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION ON THE SYSTEM RESULTING FROM ANY USER'S ACTIONS OR FAILURES TO ACT.
10.5 Unauthorized Access; Lost or Corrupt Data. WE ARE NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO YOUR DATA, FACILITIES OR EQUIPMENT BY INDIVIDUALS OR ENTITIES USING THE SYSTEM OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SYSTEM, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS, AND FOR PROTECTING YOUR DATA AND PROGRAMS FROM LOSS BY IMPLEMENTING APPROPRIATE SECURITY MEASURES, INCLUDING ROUTINE BACKUP PROCEDURES. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH OUR PROVISION OF THE SERVICES.
10.6 Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THEORY OF LIABILITY, SHALL BE LIMITED TO THE AGGREGATE FEES ACTUALLY PAID BY YOU UNDER THIS AGREEMENT.
11. Insurance.
You will obtain and maintain such policies of general liability, errors and omissions, and professional liability insurance with reputable insurance companies as is usually carried by persons engaged in your business covering the Term of this Agreement.
12. Term; Modification; Suspension; Termination.
12.1 Term. The initial term of this Agreement shall commence on the Effective Date and continue for a period of one (1) year, and thereafter until terminated as provided in this Section.
12.2 Termination upon Notice. We or you may terminate this Agreement at any time without cause upon thirty (30) days prior written notice to the other Party.
12.3 Modification. We may change the Services and the terms under which they are provided to you (including terms set forth in this Agreement) by providing you not less than thirty (30) days' notice of a change affecting financial terms, or fifteen (15) days' notice of any other change. Upon receipt of such a notice, you may terminate this Agreement by giving written notice to us on or before the effective date of the change. You agree that your failure to give notice of termination prior to the effective date of the change constitutes acceptance of the change, which shall thereupon become part of this Agreement.
12.4 Termination, Suspension or Amendment as a Result of Government Regulation. Notwithstanding anything to the contrary in this Agreement, we have the right, on notice to you, immediately to terminate, suspend, or amend this Agreement, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law, any standard of participation in any reimbursement program, or any accreditation standard; or (c) if performance of any term of this Agreement by either Party would cause it to be in violation of law, or would jeopardize its tax-exempt status.
12.5 Judicial or Administrative Procedures; Credentialing. We may terminate this Agreement immediately upon notice to you: (a) if you are named as a defendant in a criminal proceeding for a violation of federal or state law; (b) if a finding or stipulation is made or entered into that you have violated any standard or requirement of federal or state law relating to the privacy or security of health information is made in any administrative or civil proceeding; (c) you are excluded from participation in a federal or state health care program or (d) you cease to be qualified to provide services as a health care professional, or we are unable to verify your qualifications as such.
12.6 Suspension of Access. We may suspend access to the System or the Services by you or any member of your Workforce immediately pending your cure of any breach of this Agreement, or in the event we determine in our sole discretion that access to or use of the System by you or the member of your Workforce may jeopardize the System or the confidentiality, privacy, security, integrity or availability of information within the System, or that you or the member of your Workforce has violated or may violate this Agreement or our Policies and Procedures, or has jeopardized or may jeopardize the rights of any third party, or that any person is or may be making unauthorized use of the System with any User ID assigned to you or a member of your Workforce. We may terminate the access of any member of your Authorized Workforce upon termination or change in status of his or employment with you. Our election to suspend the Services shall not waive or affect our rights to terminate this Agreement as permitted under this Agreement.
12.7 Obligations After Termination. Upon termination of this Agreement, you will cease to use the System and we may terminate your access to the System. You will pay to us the Access Fee for the balance of the Term upon termination. Upon termination for any reason, you will remove all software provided under this Agreement from your computer systems, you will cease to have access to the System, and you will return to us all hardware, software and documentation provided by or on behalf of us.
13. Applicable Law.
The interpretation of this Agreement and the resolution of any disputes arising under this Agreement shall be governed by the laws of the State of California. If any action or other proceeding is brought on or in connection with this Agreement, the venue of such action shall be exclusively in the City and County of San Francisco, California.
14. ARBITRATION. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS NOTICE OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, OR TO YOUR USE OF THIS SITE OR THE SYSTEMS OR INFORMATION TO WHICH IT GIVES ACCESS, SHALL BE DETERMINED BY ARBITRATION IN PHOENIX, ARIZONA, BEFORE A SINGLE ARBITRATOR. THE ARBITRATION SHALL BE ADMINISTERED PURSUANT TO COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION.
15. Non-Assignability.
This Agreement may not be assigned or transferred by you without our prior written consent.
16. Supervening Circumstances.
No Party to this Agreement shall be deemed in violation of this Agreement if it is prevented from performing any of the obligations under this Agreement by reason of: (a) severe weather and storms; (b) earthquakes or other natural occurrences; (c) strikes or other labor unrest; (d) power failures; (e) nuclear or other civil or military emergencies; (f) acts of legislative, judicial, executive, or administrative authorities; or (g) any other circumstances that are not within its reasonable control.
17. Severability.
Any provision of this Agreement that shall prove to be invalid, void, or illegal, shall in no way affect, impair, or invalidate any other provision of this Agreement, and such other provisions shall remain in full force and effect.
18. Notices.
Any and all notices required or permitted under this Agreement shall be sent by United States mail or fax transmission to the address provided below or to such other and different addresses as the Parties may designate in writing. If you supply us with an electronic mail address, we may give notice by email message addressed to such address; provided that if we receive notice that the email message was not delivered, we will give the notice by United States mail or fax.
Write
To us:
House Calls of Arizona dba My Mobile Practice Manager
PO Box 11951
Chandler, AZ 85248
19. Waiver.
No term of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. Any consent by any Party to, or waiver of a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
20. No Third-Party Beneficiaries.
Nothing express or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever.
21. Advice of Counsel.
Each Party acknowledges: (a) having fully read this Agreement in its entirety; (b) having had full opportunity to study and review this Agreement; (c) having been advised that counsel for us has acted solely on our behalf in connection with the negotiation, preparation, and execution of this Agreement; (d) having been advised that all parties have the right to consult and should consult independent counsel respecting their rights and duties under this Agreement; and (e) having had access to all such information as has been requested.
22. Authority.
The individuals entering into this Agreement represent and warrant that they are competent and capable of entering into a binding contract, and that they are authorized to enter into this Agreement on behalf of the Parties.\