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Terms of Service-for healthcare providers
IMPORTANT-READ CAREFULLY: The TouchNetworks' Terms of Service and License Agreement ("Agreement") is a legal agreement between you or your Healthcare practice group, as a "user," and Touch Networks, Inc. ("TouchNetworks"), as the "licensor," of TouchNetworks ® services and TouchBase ® software and interactive systems, which include computer software and may include associated media, printed materials, interactive functions, a rich collection of services and resources, including various communications tools, electronic medical records, email services, and branded programming through its network of properties which may be accessed through any various medium or device now known or hereafter developed and "on-line" or electronic documentation (collectively known throughout these Terms of Service as the "Services" or the "Service"). Upon accessing the Services, whether by downloading, installing, using or otherwise, you and others who use or access the Services agree they are subject to the terms of this Agreement. If you are registering on behalf of a Provider group practice or professional corporation (a "Group"), you warrant that you have the authority to accept this Agreement on behalf of all licensed physicians and healthcare practitioners ("Providers") associated with the Group that wish to use the Services, including contract Providers, and to bind such Providers to the terms of this Agreement.
For purposes of this Agreement, the term "you" means yourself as a Provider or other User with access to the Services and also means your practice Group (and the Provider who registers his or her Group is responsible for ensuring that each User in his or her Group and his Group complies with and is bound by this Agreement). If the Services are being utilized by a Group, it is agreed that the term "you" shall include both the Group itself and each Provider associated with or employed by the Group who uses the Services, and the Group and each such person shall be deemed to have accepted this Agreement. Use of the Services by you or your Group is expressly limited to communicating with your patients and assisting them with their medical needs.
Warning: The Services, including associated web access, communication tools, database and documentation, is not itself the practice of medicine and shall not be considered the practice of medicine. The service provided or accessed by the Services is an informational and interactive resource or tool designed to assist licensed physicians and healthcare practitioners in caring for their patients. TouchNetworks does not assume any responsibility for any aspect of healthcare administered with the aid of information the service provided. TOUCHNETWORKS DOES NOT SCREEN, PERFORM BACKGROUND CHECKS ON, CONFIRM THE QUALIFICATIONS OF, EVALUATE, OR ENDORSE ANY HEALTHCARE PROVIDER. YOU ARE SOLELY RESPONSIBLE FOR ESTABLISHING AND MAINTAINING THE RELATIONSHIP WITH YOUR PATIENT OR THE REFERRED PROVIDER/PHYSICIAN (AND CONFIRMING OR EVALUATING HIS OR HER QUALIFICATIONS).
HIPAA NOTICE:
Your use of healthcare information accessed or provided through use of TouchBase® Services is information that must be protected under the Privacy Rule of the Healthcare Insurance Portability and Accountability Act (HIPAA), 45 CFR Part 160 and Part 164, and you agree to comply with all of the requirements of HIPAA and the Privacy Rule. Any unauthorized use or disclosure of Protected Health Information by you or those who obtain access through you may violate the HIPAA Privacy Rule and require that you indemnify TouchNetworks as provided in this Agreement. Additional obligations with respect to HIPAA are contained in Section 20.
1. ACCEPTANCE OF TERMS
TouchNetworks provides its Services to you, subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. You can review the most current version of the TOS here at any time. In addition, when using particular TouchNetworks owned or operated Services, you and TouchNetworks shall be subject to any posted guidelines or rules applicable to such Services which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into these TOS. TouchNetworks may also offer other services that are governed by different Terms of Service.
You agree that only licensed healthcare providers from your office may access the Services and Protected Health Information and you represent and warrant you are a licensed physician or health care provider.
2. DESCRIPTION OF SERVICES
In addition to the Services described at the beginning of this Agreement, you also understand and agree that the Services may include advertisements and that these advertisements are necessary for TouchNetworks to provide the Services at competitive rates. You also understand and agree that the Services may include certain communications from TouchNetworks, such as service announcements, administrative messages and the TouchNetworks Newsletter, and that these communications are considered part of TouchNetworks membership and you will not be able to opt out of receiving them if you desire to continue to have access to the Services. Unless explicitly stated otherwise, any new features that augment or enhance the current Services, including the release of new TouchNetworks properties, shall be subject to the TOS. You understand and agree that the Services are provided "AS-IS" and that TouchNetworks assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings and TouchNetworks does not guaranty the accuracy or validity of information provide by or through use of its site or by healthcare providers or patients. You are responsible for obtaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Service.
3. YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you represent that you are of legal age or otherwise authorized to form a binding contract and are not a person or member of a group barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself and your practice group as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times. If you provide any information that is untrue, inaccurate, not current or incomplete, or TouchNetworks has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, TouchNetworks has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
4. TOUCHNETWORKS PRIVACY POLICY
Registration Data and certain other information about you and your practice group is subject to our Privacy Policy. For more information, see our full privacy policy at http://www.TouchNetworks.com/pp.asp. You understand that through your use of the Service you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing, and use by TouchNetworks and its affiliates. You agree we may change the Privacy Policy from time to time, as reflected at http://www.TouchNetworks.com/pp.asp.
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify TouchNetworks of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. TouchNetworks cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5.
6. MEMBER CONDUCT
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not TouchNetworks, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. TouchNetworks does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will TouchNetworks be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service. You agree to not use the Service to:
a. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
b. harm minors in any way;
c. impersonate any person or entity, including, but not limited to, a TouchNetworks official, forum leader, guide or host, or falsely state or otherwise misrepresent your 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 Service;
e. upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available 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, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
g. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or harvest names or email addresses or send unsolicited emails to users;
h. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
i. disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
j. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
k. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law;
l. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act, or any successor act or regulation;
m. "stalk" or otherwise harass another; and/or
n. collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through m above.
You acknowledge that TouchNetworks may or may not pre-screen Content, but that TouchNetworks and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the Service. Without limiting the foregoing, TouchNetworks and its designees shall have the right to remove any Content that violates the TOS or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by TouchNetworks or submitted to TouchNetworks, including without limitation information in all parts of the Service.
You acknowledge, consent and agree that TouchNetworks may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS or perform the Services; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of TouchNetworks, its users and the public.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by TouchNetworks and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
7. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
8. CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE
TouchNetworks does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on publicly accessible areas of the Service, you grant TouchNetworks the following world-wide, royalty free and non-exclusive license(s), as applicable:
With respect to photos, graphics, electronic medical records, audio or video you submit, participate in or make available for inclusion on accessible areas of the Service the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available and/or to retain such Content as part of a record of the transaction or use of the Service. This license exists only for as long as you elect to continue to include such Content on the Service and will terminate at the time you remove or TouchNetworks removes such Content from the Service; provided that TouchNetworks may archive and retain such information in accordance with its record keeping policies.
"Publicly accessible" areas of the Service are those areas of the TouchNetworks network of properties that are intended by TouchNetworks to be available to the general public. By way of example, publicly accessible areas of the Service would include TouchNetworks Updates and Downloads.
9. INDEMNITY
You agree to indemnify and hold TouchNetworks, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.
10. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your TouchNetworks I.D.), use of the Service, or access to the Service.
11. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that TouchNetworks may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that email messages, data transfers or other uploaded Content will be retained by the Service, the maximum number of email messages that may be sent from or received by an account on the Service, the maximum size of any email message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on TouchNetworks' servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that TouchNetworks has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the Service. You acknowledge that TouchNetworks reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that TouchNetworks reserves the right to modify these general practices and limits from time to time.
12. MODIFICATIONS TO SERVICE
TouchNetworks reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that TouchNetworks shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
13. TERMINATION
You agree that TouchNetworks may, without prior notice, immediately terminate your TouchNetworks account, any associated account information, and access to the Service. TouchNetworks may terminate your account and access for any reason or no reason, including without limitation, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g) you have engaged in fraudulent or illegal activities, and/or (h) nonpayment of any fees, if any, owed by you in connection with the Services. Termination of your TouchNetworks account includes (a) removal of access to all offerings within the Service, including but not limited to TouchNetworks software, web sites, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring further use of the Service. Further, you agree that all terminations shall be made in TouchNetworks' sole discretion and that TouchNetworks shall not be liable to you or any third-party for any termination of your account, any associated account information, or access to the Service. Your obligations under Sections 2, 4, 5, 6, 9, 10, 11, 12, 15, 16, 17, 18, 20, 22 and 24 of this Agreement shall survive termination.
14. DEALINGS WITH ADVERTISERS
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that TouchNetworks shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service. You agree that during the registration process and from time to time thereafter, when information is updated or inputted into our Service or system, such information may be anonymously communicated to advertisers or sponsors, or utilized by TouchNetworks, for the purpose of enabling directed advertisements or offers to be forwarded to your attention at your email address or on our website where you can view such offers while you are logged onto the Services. You may not opt out of this form of communication.
15. LINKS
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because TouchNetworks has no control over such sites and resources, you acknowledge and agree that The TOS and the relationship between you and TouchNetworks shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. You agree that exclusive jurisdiction for any dispute with Touch Networks, or in any way relating to your use of the Services, resides in the courts of the State of Washington, venue is proper in such courts, you waive trial by jury and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of Washington in connection with any such dispute including any claim involving Touch Networks or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers, and content providers. By mail:
Copyright Agent
c/o TouchNetworks Inc.
2515 152nd AVE NE
Redmond, WA 98052
By phone: (425) 881-8806
By fax: (425) 881-5820
By email: support@touchnetworks.com
You acknowledge and agree that the Services and any necessary software used in connection with the Services ("Software") contain proprietary and confidential information of TouchNetworks that is protected by applicable intellectual property and other laws; and the entire right, title and interest in and to the Services, including associated intellectual property rights, patents, copyrights, trademarks and trade secrets, shall remain with TouchNetworks, title to the Services and all changes, modifications and derivative works shall remain with TouchNetworks, and TouchNetworks retains all rights not expressly granted. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by TouchNetworks or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
Upon downloading, using and/or installing the Services, you agree TouchNetworks grants you only a personal, non-transferable, non-assignable and non-exclusive right and license to use the Services, in object code form only, on a single personal computer owned and controlled by you. The Services are "in use" on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g. hard disk, CD-ROM or other storage device) of that computer. Use of the Services is limited to assisting you or members of your practice with accessing your patient's healthcare profile and records and assisting you in communicating with your Patient and other health care providers of your patient. You are not permitted to use the Services for any other purpose. You agree you may not (and will not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services or Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by TouchNetworks for use in accessing the Service and you may not remove or alter any of the copyright notices or other proprietary markings on the Services.
16. DISCLAIMER OF WARRANTIES
You acknowledge that use of the Services may involve the transmission, upload, download, translation or transfer of its data to a server or computer platform outside of your control, and some errors in the data may occur while transferring, transmitting or translating data while using the Services. TouchNetworks cautions You to determine for yourself the suitability of the use of the Services for any purpose. You agree that TouchNetworks makes no representations or warranties regarding the completeness or accuracy of information generated from using the Services or your use or operation of the Services.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TOUCHNETWORKS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND REASONABLE CARE IN PROVIDING INFORMATION.
b. TOUCHNETWORKS MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, FREE OF DELAY, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM OR COMMUNICATED WITH THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TOUCHNETWORKS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
e. A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SERVICE. CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY, HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SERVICE. IMMEDIATELY DISCONTINUE USE OF THE SERVICE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SERVICE -- DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
f. YOU ACKNOWLEDGE THAT TOUCHNETWORKS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY HEALTH CARE TREATMENT AND THAT THE RESPONSIBILITY FOR HEALTH CARE TREATMENT LIES SOLELY WITH YOU.
17. LIMITATION OF LIABILITY
TOUCHNETWORKS SHALL NOT BE LIABLE TO ANY PERSON (INCLUDING BUT NOT LIMITED TO YOU AND PERSONS TREATED BY YOU OR ON YOUR BEHALF) FOR, AND YOU AND YOUR PRACTICE GROUP AGREE TO INDEMNIFY AND HOLD TOUCHNETWORKS HARMLESS FROM ANY CLAIMS, LAWSUITS, PROCEEDINGS, COSTS, ATTORNEY'S FEES, DAMAGES OR OTHER LOSSES (COLLECTIVELY, "LOSSES") ARISING OUT OF, RESULTING FROM OR RELATING TO (I) ) VIOLATIONS OF HIPAA BY YOU OR USERS PERMITTED ACCESS OR OBTAINING ACCESS THROUGH YOU OR YOUR ENTITY; (II) THE USE OR THE INABILITY TO USE THE SERVICE; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (V) ANY DATA OR INFORMATION INPUTTED ON THE SERVICE BY YOU OR PERSONS ACCESSING THROUGH YOUR REGISTERED ACCOUNT OR USING YOUR COMPUTER OR EMAIL ADDRESS; (VI) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (VII) ANY OTHER MATTER RELATING TO THE SERVICE, IN ALL CASES INCLUDING BUT NOT LIMITED TO LOSSES FOR BREACH OF WARRANTY, CONTRACT, TORT, PERSONAL INJURY, MEDICAL MALPRACTICE OR PRODUCT LIABILITY.
IN THE EVENT THE LIMITATION OF ALL LIABILITY, REMEDIES OR DAMAGES UNDER THIS AGREEMENT IS FOUND NOT ENFORCEABLE, THE SOLE AND EXCLUSIVE REMEDY FOR DAMAGES INCURRED AS A RESULT OF THE SERVICES PROVIDED HEREUNDER SHALL BE REIMBURSEMENT OF (i) THE FEES PAID BY YOU TO TOUCHNETWORKS DURING THE TIME PERIOD IN WHICH THE SERVICES WERE RENDERED AND THE DAMAGES WERE INCURRED, OR (ii) IN THE EVENT NO FEES WERE PAID OR REQUIRED DURING SUCH TIME PERIOD, $100. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW AND WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL TOUCHNETWORKS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNATIVE OR INDIRECT DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, OR DOWN TIME, EVEN IF TOUCHNETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE REMEDY PROVIDED HEREUNDER FAILS OF ITS ESSENTIAL PURPOSE. THE INFORMATION CONTAINED WITHIN THE SERVICE PROVIDED IS INTENDED FOR USE ONLY BY PHYSICIANS AND OTHER HEALTHCARE PROFESSIONALS WHO SHOULD RELY ON THEIR CLINICAL DISCRETION AND JUDGMENT IN DIAGNOSIS AND TREATMENT. AS BETWEEN YOU AND TOUCHNETWORKS, YOU HEREBY ASSUME FULL RESPONSIBILITY FOR INSURING THE APPROPRIATENESS OF USING AND RELYING UPON THE INFORMATION IN VIEW OF ALL ATTENDANT CIRCUMSTANCES, INDICATIONS, AND CONTRAINDICATIONS.
18. EXCLUSIONS AND LIMITATIONS-other state's laws
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY TO YOU.
19. BUSINESS ASSOCIATE AGREEMENT
Definitions
a. "Individual" shall have the same meaning as the term "individual" in 45 CFR § 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
b. "Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
c. "Protected Health Information" shall have the same meaning as the term "protected health information" in 45 CFR § 164.501, limited to the information created or received by TouchNetworks from or on behalf of a Patient or Provider.
d. "Secretary" shall mean the Secretary of the Department of Health and Human Services or his designee.
Obligations and Activities of TouchNetworks.
a. TouchNetworks agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or by law.
b. TouchNetworks agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement.
c. TouchNetworks agrees to report to the Provider any use or disclosure of the Protected Health Information not provided for by this Agreement of which it becomes aware.
d. TouchNetworks agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by TouchNetworks on behalf of a Patient or Provider, agrees to the same restrictions and conditions that apply through this Agreement to TouchNetworks with respect to such information.
e. TouchNetworks agrees to make internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, or created or received by TouchNetworks on behalf of, a Patient or Provider, available to the Secretary, in a time and manner designated by the Secretary, for purposes of the Secretary determining your compliance with the Privacy Rule.
f. TouchNetworks agrees to document such disclosures of Protected Health Information and information related to such disclosures as would be required for a Provider to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 CFR § 164.528.
Permitted Uses and Disclosures by TouchNetworks.
Except as otherwise limited in this Agreement, TouchNetworks may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, the Patient or Provider as specified herein, provided that such use or disclosure would not violate the Privacy Rule if done by the Provider or its minimum necessary policies and procedures.
Patient/Provider Obligations.
a. You, as a Provider, shall notify TouchNetworks of any limitation(s) in your notice of privacy practices in accordance with 45 CFR § 164.520, to the extent that such limitation may affect Touch Network's use or disclosure of Protected Health Information.
b. You shall notify TouchNetworks of any changes in, or revocation of, permission by an Individual to use or disclose Protected Health Information, to the extent that such changes may affect Touch Network's use or disclosure of Protected Health Information.
c. You shall notify TouchNetworks of any restriction to the use or disclosure of Protected Health Information that you have agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Touch Network's use or disclosure of Protected Health Information.
Permissible Requests. You shall not request TouchNetworks to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by you.
Survival. The provisions of this Section 19 shall survive any termination of this Agreement. Upon termination of this Agreement, it may be infeasible for TouchNetworks to return or destroy most of the Protected Health Information provided by you to TouchNetworks, or created or received by TouchNetworks on behalf of you. Accordingly, the protections afforded herein shall continue to be extended to all of such retained Protected Health Information and TouchNetworks shall limit further uses and disclosures of such retained Protected Health Information to those purposes that make the return or destruction infeasible, for so long as TouchNetworks maintains such Protected Health Information. TouchNetworks may provide to you notification of the conditions that make return or destruction infeasible upon termination. TouchNetworks shall return or destroy that portion of the Protected Health Information for which it is feasible to do so upon termination. This Section shall also apply to Protected Health Information that is in the possession of subcontractors or agents of TouchNetworks.
20. NOTICE
TouchNetworks may provide you with notices, including those regarding changes to the TOS, by either email, regular mail, or postings on the Service.
21. TRADEMARK INFORMATION
The TOUCHNETWORKS, TouchNetworks logo, TouchBase trademarks and service marks and other TouchNetworks' logos and product and service names are trademarks of Touch Networks, Inc. (the "TouchNetworks Marks"). Without TouchNetworks' prior permission, you agree not to display or use in any manner, the TouchNetworks Marks.
22. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
TouchNetworks respects the intellectual property of others, and we ask our users to do the same. TouchNetworks may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide TouchNetworks' Copyright Agent the following information:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on the site;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
TouchNetworks' Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
By mail:
Lauree Thiessen,
Copyright Agent
c/o TouchNetworks Inc.
2515 152nd AVE NE
Redmond, WA 98052
By phone: (425) 881-8806
By fax: (425) 881-5820
By email: support@touchnetworks.com
23. GENERAL INFORMATION
Entire Agreement. The TOS constitutes the entire agreement between you and TouchNetworks and governs your use of the Service, superseding any prior agreements between you and TouchNetworks with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other TouchNetworks services, affiliate services, third-party content, or third-party software.
Choice of Law and Forum. THE TOS AND THE RELATIONSHIP BETWEEN YOU AND TOUCHNETWORKS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. YOU AGREE THAT EXCLUSIVE JURISDICTION FOR ANY DISPUTE WITH TOUCHNETWORKS, OR IN ANY WAY RELATING TO YOUR USE OF THE SERVICES, RESIDES IN THE COURTS OF THE STATE OF WASHINGTON, VENUE IS PROPER IN SUCH COURTS, YOU WAIVE TRIAL BY JURY AND YOU FURTHER AGREE AND EXPRESSLY CONSENT TO THE EXERCISE OF PERSONAL JURISDICTION IN THE COURTS OF THE STATE OF WASHINGTON IN CONNECTION WITH ANY SUCH DISPUTE INCLUDING ANY CLAIM INVOLVING TOUCHNETWORKS OR ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, CONTRACTORS, OFFICERS, DIRECTORS, TELECOMMUNICATION PROVIDERS, AND CONTENT PROVIDERS.
Waiver and Severability of Terms. The failure of TouchNetworks to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. The provisions of this Agreement are severable. If any provision of this agreement is held unenforceable, the remaining provisions shall nevertheless remain enforceable. If a court holds that any provision of this Agreement is unenforceable, the court making such determination shall modify, among other things, the scope or duration of the provision to preserve the enforceability thereof to the maximum extent then permitted by law.
Legal Fees. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing Party or Parties shall be entitled to recover from the other Party reasonable attorney's fees and other costs incurred in that action or proceeding. No Right of Survivorship and Non-Transferability. You agree that your TouchNetworks account is non-transferable and any rights to your TouchNetworks I.D. or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Consequences of Breach. You acknowledge that: irreparable injury and damage to TouchNetworks will result from breach of the TOS or from uses of the Services other as contemplated herein; monetary damages may not be sufficient remedy for unauthorized disclosure of or use of the Services; TouchNetworks shall be entitled, without waiving any additional rights or remedies available to it at law, in equity, or by statute, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this TOS, there shall be no third party beneficiaries to this Agreement.
The section titles in the TOS are for convenience only and have no legal or contractual effect.
24. VIOLATIONS
Please report any violations of the TOS to our Customer Care group.
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