Last modified: July 10, 2018
Treatspace, Inc. (“Treatspace”) provides access to a patient engagement software platform pursuant to a hosted solution known as PracticeBeat (the “Platform”). The Sales Agreement sets forth the “Products” and “Services” related to PracticeBeat being purchased by the customer (“Customer”) who signed the Sales Agreement.
These terms of service (“Terms”) are incorporated by reference to and made part of the Sales Agreement and govern the relationship between the Customer, any end users of Products and Services (“Users”) on behalf of the Customer, and Treatspace.
Anyone accepting these Terms on behalf of the Customer, represents and warrants that they have full legal authority to bind the Customer to these Terms, that they have read and understand these Terms, and that they agree on behalf of the Customer to accept these Terms.
All Users agree to abide by the user policies set forth herein.
TREATSPACE WILL ALSO PROVIDE NOTICE VIA EMAIL TO ALL PRIMARY CONTACTS LISTED ON YOUR SALES AGREEMENT WHEN THESE TERMS HAVE CHANGED.
The Products and Services include, but are not limited to, the development of a cloud-based practice website (“Practice Website”) that includes additional cloud based tools including fact management, content creation wizard, search engine optimization, online appointment tool, reputation management, patient feedback, social media integration, and analytics dashboard.
In conjunction with providing Products and Services to Customer, Treatspace may be required to use or disclose Protected Health Information (as defined in 45 C.F.R. 164.501; hereinafter, “PHI”). The parties hereto shall use or disclose such PHI as required by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) and the Standards for Security of Electronic Protected Health Information (the “Security Rule”) promulgated thereunder, and the Health Information Technology for Economic and Clinical Health Act (Division A, Title XIII and Division B, Title IV, of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) (the “HITECH Act”). Capitalized terms used but not otherwise defined in this Section 2 shall have the same meaning given to such terms in HIPAA, the HITECH Act, or any implementing regulations promulgated thereunder, including but not limited to the Privacy Rule and the Security Rule. In connection with and by agreeing to these Terms, Customer and Treatspace agree to be bound by the terms of a Business Associate Agreement, the terms of which are referenced in the Sales Agreement. Customer (the “Covered Entity,” as referred to in the Business Associate Agreement) hereby agrees that it has read and agree to be bound by the terms of the Business Associate Agreement. Treatspace (the “Business Associate,” as referred to in the Business Associate Agreement), agrees to be bound by the terms of the Business Associate Agreement. The parties hereto each agree to perform their respective obligations as enumerated therein.
The Customer may provide content for Treatspace to use on the Practice Website. This could include, but is not limited to images, photos, text, practice information, and data (“Content”). The Customer is responsible for any consequences of publishing this content, and asserts that by providing Content, the Customer is the creator and owner of the content and has all rights and permissions necessary to grant all relevant rights and permissions to Treatspace with respect to such Customer Content.
Treatspace shall maintain all rights, title and interest in and to all its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights, including rights in and to the Products and Services, Treatspace Marks (defined below), including its “look and feel” (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software (including html-based computer programs) and other material are protected under both United States and other applicable copyright, trademark and other laws (collectively, “Intellectual Property Rights”). The rights granted to Customer to use the Products and Services under these Terms do not convey any additional rights in the Products and Services, or in any Intellectual Property Rights associated therewith.
Treatspace shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback Treatspace receives from Customer.
Treatspace, and Treatspace’s other product and service names, and logos used or displayed on the Services are registered or unregistered trademarks of Treatspace (collectively, “Treatspace Marks”), and Customer may only use such Treatspace Marks to identify itself as a customer and user of the Products and Services; provided Customer does not attempt, now or in the future, to claim any rights in the Treatspace Marks, degrade the distinctiveness of the Treatspace Marks, or use the Treatspace Marks to disparage or misrepresent Treatspace, it services or products.
All rights, title and interest in and to Products and Services and its components, including all related intellectual property rights, will remain with and belong exclusively to Treatspace and its third-party vendors.
During the Term and upon the condition that Customer complies with all of Customer’s obligations under these Terms, Treatspace grants Customer a non-exclusive, non-transferable, revocable license to access and use Products and Services (for the particular subscription purchased, as applicable), strictly in accordance with these Terms and subject to all the limitations set forth in these Terms.
Customer agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Products and Services available to any third party, other than as expressly permitted by these Terms; (b) use the Products and Services to process data on behalf of any third party; (c) modify, adapt or hack the Products and Services to falsely imply any sponsorship or association with Treatspace, or otherwise attempt to gain unauthorized access to the Products and Services or its related systems or networks; (d) use the Products and Services in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law; (e) use the Products and Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Products and Services; (g) use the Products and Services to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorized access to any paid features of the Platform; or (i) try to use, or use the Products and Services in violation of these Terms.
Customer is responsible for all information, data, text, messages or other materials transmitted by Customer and its Users via the Products and Services. Customer and Users are responsible for maintaining the confidentiality of usernames and accounts, and are fully responsible for any and all activities that occur under such usernames or accounts. Customer agrees that it is responsible for anything that happens through its account during the Term unless Customer proves that its account security was compromised due to no fault of its own.
The Customer agrees to pay Treatspace applicable fees in accordance with the applicable billing subscription and terms as indicated in the Sales Agreement. Subscription fees will not be changed during the subscription period. Treatspace reserves the right to change subscription fees prior to any renewal of the Sales Agreement and will communicate any changes at least 60 days prior to the customer’s annual renewal date. Customer’s renewal of the Sales Agreement shall be deemed and acceptance of any such price changes. All fees are NON REFUNDABLE.
Late payments: If Treatspace has not received Customer’s payment within thirty (30) days of the invoice date, Treatspace will send Customer an email reminder and add a 5% late payment fee to its outstanding balance for each 30 day period beyond the invoice date. If Treatspace has not received payment within ninety (90) days of the invoice date, Customer’s account will be disabled. There will be a fee of $150.00 to reactivate a disabled account.
Access to the Products and Services will continue for the period indicated on the Sales Agreement. The Sales Agreement cannot be cancelled prior to its expiration date. All fees paid are non-refundable even if the Customers discontinues use of the subscription prior to the end of the subscription term.
Auto Renewal. To ensure uninterrupted service after the initial term, annual renewal will occur automatically and Customer will be invoiced for subsequent fees in accordance with the billing subscription and terms listed on the Sales Agreement. Customer may choose to cancel by providing a 30 day notice to Treatspace prior to renewal date.
Either party may terminate the Sales Agreement based upon a material breach of the other’s obligations under the terms of the Sales Agreement or these Terms. The terminating party shall so notify the other party and termination shall become effective fifteen (15) calendar days after receipt of such written notice unless the breaching party has within such time cured the breach or, for matters that cannot be fully cured within such time, commenced and continued to diligently pursue appropriate corrective action.
All Products and Services will be hosted and operated by Treatspace. Treatspace may update any features or functionality of Products or Services at any time.
Customer agrees that Treatspace may include Customer’s name and logo on client lists, marketing materials, and sales presentations.
To the extent authorized by the law, Treatspace and the Customer may, from time to time, in connection with work contemplated under this Agreement, disclose confidential information to each other (“Confidential Information”). Each party will use reasonable efforts to prevent the disclosure of any of the other party’s Confidential Information to third parties, provided that the recipient party’s obligation shall not apply to information that:
THE PRODUCTS AND SERVICES, INFORMATION, DATA, FEATURES, AND ALL CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE PRODUCTS AND SERVICES OR PROVIDED THROUGH THE PRODUCTS AND SERVICES (WHETHER OR NOT SPONSORED) ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. TREATSPACE, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE PRODUCTS OR SERVICES. CUSTOMER EXPRESSLY AGREES THAT ITS USE OF THE SERVICES IS AT ITS SOLE RISK.
NEITHER TREATSPACE OR ITS SUPPLIERS MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT (WHETHER OR NOT SPONSORED), AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER TREATSPACE OR ITS SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE PRODUCTS AND SERVICES IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
TREATSPACE SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO CUSTOMER OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO THE USE OF THE SERVICES OR THESE TERMS, EVEN IF TREATSPACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, TREATSPACE’S LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE AMOUNTS PAID TO TREATSPACE BY CUSTOMER DURING THE TERM OF THE SALES AGREEMENT OR (II) $500.00 (FIVE HUNDRED UNITED STATES DOLLARS).
TREATSPACE DOES NOT MONITOR OR PRESCREEN USER-GENERATED CONTENT BEFORE IT IS POSTED AND DOES NOT UNDERTAKE ANY OBLIGATION OR LIABILITY RELATED TO ANY SUCH CONTENT, BUT RESERVES THE RIGHT TO REMOVE OR EDIT ANY SUCH CONTENT OR TO TERMINATE YOUR ACCOUNT FOR ANY REASON. ANY CONTENT UPLOADED OR TRANSMITTED BY USERS, OTHER THAN THE CONTENT PROVIDED BY TREATSPACE, ARE SOLELY THE OPINIONS AND RESPONSIBILITY OF THE PERSON OR ENTITY SUBMITTING THEM AND DO NOT NECESSARILY REFLECT THE OPINIONS OF TREATSPACE. TREATSPACE SHALL HAVE NO LIABILITY FOR ANY ACTION OR INACTION REGARDING CONTENT PROVIDED BY THIRD PARTIES.
Customer shall defend, indemnify and hold harmless Treatspace and its officers, directors, shareholders, and employees, from and against all claims, suits, proceedings, losses, liabilities, and expenses, whether in tort, contract, or otherwise, that arise out of or relate, including but not limited to attorneys fees, in whole or in part arising out of or attributable to any breach of these Terms or any activity by Customer in relation to use of the Products or Services.
Arbitration. All disputes of every kind and nature between the parties and arising out of or in connection with this Agreement as to the negotiation, existence, construction, validity, interpretation or meaning, performance, non-performance, enforcement, operation, breach, continuance, or termination thereof shall be submitted to binding arbitration pursuant to the then existing Commercial Arbitration Rules of the American Arbitration Association. Such arbitration shall take place in Pittsburgh, Pennsylvania, and the Arbitrators shall apply those laws as would be applied in the matter by the Federal Court sitting in Western Pennsylvania. Any judgment or award rendered by such arbitrator(s) shall be final and binding on all parties to the proceeding, may be entered into with the highest court of competent jurisdiction for enforcement as a final judgment and adjudication.
No Class Action. Customer waives the right to bring or participate in a class action litigation with respect to the Products or Services provided.
This Agreement shall all be governed and construed in accordance with the laws of The United States of America applicable to agreements made and to be performed in The United States of America. Any cause of action or claim Customer may have with respect to the Products Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. Treatspace’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. Treatspace may assign its rights and duties under this Agreement to any party at any time without notice to Customer.
Any rights not expressly granted herein are reserved