THIS IS A LEGALLY BINDING AGREEMENT between Practice EHR LLC, a Texas limited liability company (“PRACTICE EHR”), on the one hand, and you and your medical practice, business or similar organization (collectively, the “Practice”), on the other hand. BY CLICKING “I AGREE” OR BY OTHERWISE SIGNING-UP FOR A PRACTICE EHR ACCOUNT, OR BY ACCESSING OR USING THE SERVICES (AS DEFINED BELOW), THE Practice IS ENTERING INTO THIS PRACTICE EHR SUBSCRIPTION AGREEMENT (this “Agreement”) AND THE Practice AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
PLEASE READ THIS Agreement CAREFULLY, AND DO NOT SIGN-UP FOR AN ACCOUNT OR USE THE Services IF THE Practice IS UNWILLING OR UNABLE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS Agreement. PRACTICE EHR and the Practice are collectively referred to as the “Parties”.
WHEREAS, the Practice is a medical practice licensed to practice medicine;
WHEREAS, PRACTICE EHR has developed and implemented a web-based software application for practice management and electronic health records, which software application is being licensed by PRACTICE EHR pursuant to and in accordance with the terms and conditions of this Agreement as a service to the Practice (the “Services”); and
WHEREAS, the Practice desires to license use of the Services from PRACTICE EHR, and PRACTICE EHR desires to license use of the Services to the Practice, pursuant to the terms and conditions of this Agreement (the “Trial Terms and Conditions”).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
TRIAL TERMS AND CONDITIONS
As an inducement to PRACTICE EHR to provide the Practice with a free trial of the Services (“Free Trial”), the Practice hereby agrees to the following terms and conditions:
- Subject to PRACTICE EHR’s rights to modify or terminate the Trial Period (as defined below) hereunder, the trial period shall commence on the day the Practice initiates the Free Trial by registering on http://practiceehr.com/free-trial/ (or any successor site established by PRACTICE EHR) for a trial user account and ends thirty (30) days thereafter (such period is hereinafter referred to as the “Trial Period”). Such Trial Period may not be extended except in a writing signed by PRACTICE EHR. PRACTICE EHR may immediately suspend or terminate the Free Trial at any time (whether before, during, or after the Trial Period), without notice to the Practice, and without any liability whatsoever. PRACTICE EHR reserves the right to modify, change, or supplement these Trial Terms and Conditions at any time by posting new Trial Terms and Conditions on PRACTICE EHR’s applicable website. Such new Trial Terms and Conditions are effective upon posting with five (5) days’ notice by PRACTICE EHR on PRACTICE EHR’s applicable website. Therefore, the Practice hereby agrees to be responsible for regularly and periodically accessing and reviewing PRACTICE EHR’s website.
- Trial License Grant. PRACTICE EHR hereby grants the Practice, upon the terms and conditions contained in these Trial Terms and Conditions, a limited, non-transferable, non-sublicensable, non-exclusive license for all licensed professionals associated with the Practice, including, without limitation, all physicians, nurses practitioners, physician assistants and therapists (collectively, “Licensed Users”) to use the Services, during the Trial Period in accordance with PRACTICE EHR’s then current documentation but only: (i) in the ordinary course of the Practice’s normal and ordinary internal business, and (ii) in accordance with applicable federal, state, and local laws, rules, and regulations (“Intended Purpose”). The Practice covenants and agrees that the Services shall not be used by any person or entity other than the Licensed Users for the Intended Purpose and shall prevent any subcontractor or agent of the Practice or any other third party from using the Services. The Practice acknowledges that the Services will encompass information about items, devices, products and/or services not owned by PRACTICE EHR, but instead provided by a third party or third parties, inclusive of, but not limited to, third-party vendors and manufacturers (“Third Party Services”).
- Trial License Restrictions. In furtherance of Section B of the Trial Terms and Conditions, the Practice shall not, and shall not permit any third party (including, but not limited to, affiliates, employees or agents of any third party) to: (i) duplicate, modify, decompile or reverse engineer any of the Services for any reason; or (ii) resell the Services to any unrelated third party. This is a license, not a sale. The Practice shall not, and shall not allow anyone to: (1) circumvent any security feature of the Services; (2) use the Services to provide services (including processing, commercial timesharing, rental, sharing, application service provider, “service office,” or “service bureau” arrangements) to any third party; (3) permit any third party to view, use, access, or copy the Services; or (4) disclose, publish, broadcast, sell, or otherwise redistribute the Services. The Practice shall maintain the confidentiality and security of any password, account, and other identification information provided with respect to the Services and not to provide it to any other person or entity (including, but not limited to affiliates, employees or agents of any third party). The Practice shall be responsible for all use of, and activities that occur under, its password(s), account, and other identification information and for any actions that take place through its access to the Services (whether conducted by the Practice or another). The Practice agrees to use the Services only for the Intended Purpose.
- THE SERVICES, SUPPORT, DOCUMENTATION, AND ANY OTHER SERVICES, DATA, AND CONTENT (INCLUSIVE OF THIRD PARTY SERVICES AND ANY AND ALL THIRD PARTY ITEMS, PRODUCTS, DEVICES AND/OR MATERIALS) PROVIDED BY PRACTICE EHR UNDER THESE TRIAL TERMS AND CONDITIONS OR AS PART OF THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. PRACTICE EHR DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. THE PRACTICE ACKNOWLEDGES AND AGREES THAT (I) PRACTICE EHR SHALL HAVE NO LIABILITY WITH RESPECT TO THE ACTS OR OMISSIONS OF PRACTICE EHR’S SUBCONTRACTORS IN CONNECTION WITH THE PROVISION OF SERVICES HEREUNDER; AND (II) THE PRACTICE’S SOLE REMEDY WITH RESPECT TO THE ACTS OR OMISSIONS OF THE SUBCONTRACTORS SHALL BE DIRECT RECOURSE AND/OR ACTION BY THE PRACTICE AGAINST THE APPLICABLE SUBCONTRACTOR. THE PRACTICE EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF AND RECEIPT OF THE SERVICES ARE AT THE PRACTICE’S SOLE RISK, INCLUDING ERRORS IN INFORMATION, CONTENT, PRICING, AND OTHER OUTPUT FROM THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PRACTICE EHR OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTIES, PRODUCT ENDORSEMENTS OR MEDICAL ADVICE, OR IN ANY WAY INCREASE THE SCOPE OF PRACTICE EHR’S OBLIGATIONS UNDER THIS AGREEMENT. PRACTICE EHR DOES NOT ENDORSE ANY THIRD PARTY SERVICE CONTAINED WITHIN THE CONTENT OF THE LICENSED SERVICES. THE LISTING OF THIRD PARTY PRODUCT WITHIN THE SERVICES IN NO WAY CONSTITUTES AN ENDORSEMENT OF SUCH BY PRACTICE EHR, NOR ANY REPRESENTATION OR WARRANTY AS TO THE SAFETY, EFFICACY OR APPROPRIATENESS OF ANY THIRD PARTY PRODUCT. PRACTICE EHR PROVIDES NO PROFESSIONAL OR MEDICAL ADVICE AS TO ANY PRODUCT, EQUIPMENT, SERVICE OR THIRD PARTY ITEM OR USE OF ANY PRODUCT, EQUIPMENT OR THIRD PARTY SERVICE. PRACTICE EHR SHALL HAVE NO LIABILITY OF ANY KIND TO THE PRACTICE IN CONNECTION WITH THE PRACTICE’S PROCUREMENT OR USE OF ANY EQUIPMENT, PRODUCTS OR THIRD PARTY ITEM. PURCHASE AND/OR USE OF ANY THIRD PARTY PRODUCT CITED WITHIN THE SERVICES IS AT THE PRACTICE’S SOLE RISK.
- THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET AND TO LINK TO THIRD PARTY WEB SITES. THE PRACTICE ACKNOWLEDGES AND AGREES PRACTICE EHR DOES NOT OPERATE OR CONTROL THE INTERNET OR THE THIRD PARTY WEB SITES AND: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE PRACTICE’S DATA, WEB SITES, COMPUTERS, OR NETWORKS. PRACTICE EHR SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. PRACTICE EHR DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM PRACTICE EHR’S NETWORK AND OTHER PORTIONS OF THE INTERNET, OR THE AVAILABILITY OF OR ACCESS TO THIRD PARTY WEB SITES. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. THE ACTIONS OR INACTIONS OF THIRD PARTIES CAN IMPAIR OR DISRUPT THE PRACTICE’S CONNECTIONS TO THE INTERNET, ACCESS TO THIRD PARTY WEB SITES OR PORTIONS THE INTERNET OR WEB SITES, AND THE TRANSMISSION OF DATA. ALTHOUGH PRACTICE EHR WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, PRACTICE EHR CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, PRACTICE EHR DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATING TO SUCH EVENTS.
PRACTICE EHR SUBSCRIPTION TERMS
If the Practice has purchased a license to or has otherwise subscribed to the Services as indicated in PRACTICE EHR’s applicable records or if the Practice otherwise continues to access or use the Services after the expiration of any applicable trial period, the Practice hereby agrees to the following terms and conditions (which terms and conditions when effective supersede and replace the Trial Terms and Conditions above):