These terms of service (“Agreement”) are between Pragma-IT, LLC (the “Company”) and the user agreeing to these terms (User).
BY USING THE SERVICE OR PRESSING “AGREE”, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.
1. Provision of Services
The therapyBOSS patient portal website and domain name and any other linked pages, features or application services (including without limitation any mobile application services) are owned and operated by the Company. Subject to the terms and conditions of this Agreement, the Company provides User with access to the therapyBOSS patient portal (the “Service”) as initiated and approved by a customer of the Company.
(a) To the Agreement. The Company reserves the right to make changes to this Agreement. The Company will post any changes on this page and prompt User to agree to the revised agreement when User logs in to the Service. If User does not agree to the revised Agreement, User may stop using the Service.
(b) To the Service. The Company may make commercially reasonable updates to the Service from time to time. The Company is not obligated to inform User if the Company makes a material change to the Service that has a material impact on User’s use of the Service.
(c) Discontinuation of Service. The Company will notify User at least thirty (30) days before discontinuing Service (or associated material functionality) unless the Company replaces such discontinued service or functionality with a materially similar service or functionality. Nothing in this Section 1.2(c) (Discontinuation of Service) limits the Company’s ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden.
Nothing in this Agreement shall prohibit the Company from providing the Service to any other User.
2. Use of Service
2.1 Company Obligations
(a) Systems. The Company shall use commercially reasonable efforts to maintain the infrastructure to provide the Service, including facilities, networking, hardware, software and other technology. User understands that the Company uses third-party vendors and hosting partners to provide the necessary technology required to operate the Service.
(b) Access. The Company shall use commercially reasonable efforts to provide User with access to the Service, if initiated and approved by a customer, according to industry standards in a manner that protects information stored. Notwithstanding the foregoing, access to the Service shall not be available during periods including, but not limited to performance of maintenance, testing or any system problem.
(c) User Support. The Company shall provide technical support as requested by a customer on User’s behalf. The Company may access User’s account and any information in it, without needing User’s permission, in order to provide technical support and to troubleshoot problems with the Service.
(d) Compliance with Law. The Company shall at all times comply with applicable laws, rules and regulations relating to its obligations under this Agreement.
2.2 Limitations to Company’s Obligations
(a) The Company does not directly grant access to User and is not responsible for actions of a customer to initiate and approve User’s access to the Service.
(b) The Company is not responsible for the security of data saved by User onto User’s equipment.
(c) The Company shall have no liability for any failure or delay in performing its obligations hereunder to the extent such failure or delay is caused by the act or omissions of User; or it results from actions taken by the Company using commercially reasonable efforts to avoid violating a law, rule or regulation of any governmental authority.
(d) The Company shall have no responsibility or liability for failure of the Service to perform in accordance with this Agreement if such failure is caused by equipment, maintenance issues, third-party software, or compatibility issues be they software or hardware in nature.
2.3 User Obligations
(a) Restrictions. User may not (i) use the Service beyond its intended purpose; (ii) use the Service to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the Service; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; (iv) use the Service to violate the security of any computer network, crack passwords or security encryption codes; (v) use the Service to store, post or transmit infringing, unsolicited marketing emails, libelous, or otherwise unlawful or tortious material (including material that may be considered threatening or obscene); (vi) run any processes that run or are activated while you are not logged on to the Service; (vii) interfere with or disrupt the the proper working of or place an unreasonable load on the Service’s infrastructure; (viii) use manual or automated software, devices, or other processes to “crawl”, “scrape,” or “spider” any portion of the Service; (ix) decompile, reverse engineer, or otherwise attempt to obtain the source code of the Service; (x) modify, copy the Service, or create derivative works based on the Service or any part, feature, function or user interface thereof; (xi) use the Service in violation of any law, including without limitation, HIPAA, Telephone Consumer Protection Act and any spam laws (for example, CAN SPAM).
User understands and agrees that the Company shall have the sole right to decide whether User is in violation of any of the restrictions set forth in this Section 2.3(a) (Restrictions), and shall have sole discretion regarding the course of action to take in connection therewith.
(b) Accuracy of Information Provided by User. User represents and warrants to the Company that information provided in User’s account, by User or on their behalf, is true, correct and accurate. If User learns that any account information is not true, correct or accurate, User must promptly update it, if possible, to true, correct and accurate, or notify the Company of this fact. The Company relies on User representations regarding the truth, accuracy and compliance with laws of information in User’s account. THE COMPANY IS NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY USER’S FAILURE TO COMPLY WITH THIS PARAGRAPH, IRRESPECTIVE OF ANY ACT OR OMISSION ON THE PART OF THE COMPANY.
(c) Accuracy of User’s Contact Information. User is responsible for keeping an updated email address (“Notification Email Address”) under their account as facilitated by the Service. User understands that important notifications pertaining to User’s account and use of the Service may not be delivered to User otherwise.
(d) Account Security. User is responsible for maintaining the security of login credentials. THE COMPANY IS NOT LIABLE FOR ANY LOSS OR DAMAGE FROM FAILURE TO COMPLY WITH THIS SECURITY OBLIGATION.
(e) Content Responsibility. User is responsible for any data entered, posted or uploaded by User to the Service.
(f) Compliance with Law. User shall at all times comply with applicable laws, rules and regulations relating to User’s obligations under this Agreement.
3. Service Level Agreement / Compliance
The Company will make commercially reasonable efforts to maintain uptime of at least 99% (ninety-nine) excluding any scheduled maintenance.
3.2 Mutual Compliance with Laws
Each party represents and warrants to the other party that it will comply with all applicable laws regarding its performance under this agreement.
3.3 No Medical Advice
The Company’s Services do not provide medical advice, provide medical or diagnostic services, or prescribe medication. Use of the Service is not a substitute for the professional judgment of health care providers in diagnosing and treating. User agrees that User, along with User’s health care provider, is solely responsible for verifying the accuracy of information and for all of their decisions or actions with respect to the medical care, treatment, including without limitation, all of their acts or omissions. Any use or reliance by User upon the Service will not diminish that responsibility. Neither the Company nor its licensors assume any liability or responsibility for damage or injury (including death) to User, a patient, other persons, or tangible property arising from any use of the Service or any medical decisions made by User or User’s health care provider based on data collected, transmitted or displayed by or on the Service.
3.4 Data Retention and Patient Record Access
User and their health care provider are responsible for understanding and complying with all state and federal laws related to retention of medical records, access to information, and authorization to release data.
4. User Data and Security
4.1 User Information
All data, including information, images, documentation, and files entered, posted or uploaded by User to the Service (“User Information”) remains the sole property of User, subject to the other terms of this Agreement. User grants the Company a non-exclusive, royalty-free license to store, modify, transmit, and otherwise use User Information for purposes of the Company performing under this Agreement.
4.2 Aggregation Services and De-identified Data
The Company may use protected health information to create de-identified data in accordance with 45 CFR 164.514(a)-(c). The Company shall solely own all right, title and interest, in any de-identified data it creates from protected health information. The Company and its affiliates may use and disclose, during and after this agreement, all aggregate, anonymized information and de-identified data for purposes of enhancing the Service, technical support and other business purposes, all in compliance with the HIPAA Privacy Standards, including without limitation the limited data set and de-identification of information regulations.
4.3 Hosting and Location of Data
The company will host User Information in a secure data center with a reputable SSAE 16 Type II certified (or better) hosting vendor. User Information shall at all times be hosted in the United States.
The Company has implemented reasonable security measures, systems, and procedures designed to: (i) protect the confidentiality, integrity, and accessibility of User Information; (ii) prevent unauthorized use of or access to User Information; and (iii) protect against anticipated threats or hazards to the security or integrity of User Information. The Company provides more details about the security measures it takes on the security page of the Company’s website.
5. Intellectual Property
5.1 Intellectual Property Rights
Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, User owns all rights in User Information, and the Company and its licensors own all rights in the software, workflow processes, user interface, designs, know-how and other technologies provided by the Company as part of the Service.
(a) User shall not reproduce or distribute any aspects of the Service.
(b) User shall not remove any proprietary, trademark or copyright markings or confidentiality legends within any aspects of the Service.
6. Term and Termination
6.1 Agreement Term
This Agreement continues until terminated with or without cause by the Company, User or User’s health care provider.
6.2 Termination for Material Breach
The Company may terminate this Agreement immediately if User is in material breach of this Agreement.
6.3 Termination for Inactivity
The Company reserves the right to terminate User’s access to the Service if User has not accessed their account for a period of at least thirty (30) days.
6.4 Termination for Convenience
User may stop using the Service at any time. User may terminate this Agreement for their convenience at any time and, upon termination, must cease use of the Service. The Company may terminate this Agreement for its convenience at any time.
6.5 Termination for Violation of Law
The Company may terminate this Agreement immediately if the Company reasonably believes that (i) User may have violated any applicable law or (ii) User has violated or caused the Company to violate any laws.
7. User Feedback
At their option, User may provide feedback or suggestions about the Service to the Company. If User provides such feedback, then the Company (and those it allows to use its technology) may use that feedback without restriction and without obligation to User.
THE SERVICE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
9. Limitation of Liability
9.1 Limitation on Indirect Liability
To the extent permitted by applicable law, neither party shall be liable for any consequential, incidental, indirect, punitive or exemplary damages, including without limitation, business interruption damages, loss of anticipated profits or other economic loss, under any theory or cause of action whether in tort, contract or otherwise, regardless of whether or not it has been advised of the possibility of such damages.
9.2 Limitation on Amount of Liability
Each party’s total aggregate liability for damages arising out of or relating to this Agreement does not exceed $500. Any claim by User against the Company must be brought within twelve (12) months of the event which gave rise to the claim, and if it is not brought within such time period, then such claim is expressly waived by User.
9.3 Unlimited Liabilities
Nothing in this Agreement excludes or limits either party’s liability for:
(a) its fraud or fraudulent misrepresentation;
(b) its obligations under Section 10 (Indemnification);
(c) its infringement of the other party’s Intellectual Property Rights; or
(d) matters for which liability cannot be excluded or limited under applicable law.
User will defend the Company, its affiliates, directors, officers, employees, agents, representatives and shareholders providing the Service and indemnify them against all third-party claims (including, without limitation, by governmental agencies), demands, damages or expenses of any kind, including reasonable attorneys’ fees and costs of litigation arising from claims of a third party, to the extent such claims arise in whole or part from (i) the use of the Service by User; (ii) User’s breach of any term in this Agreement; (iii) any unauthorized use, access, or distribution of the Service by User; or (iv) violation of any individual’s privacy rights related to information submitted in User’s account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted in User’s account or by User.
Under this Agreement, notices to User must be sent to User’s Notification Email Address and notices to the Company must be sent to email@example.com. Notice will be treated as received when the email is sent. User is responsible for keeping their Notification Email Address current.
The parties may use emails to satisfy written approval and consent requirements under this Agreement.
The Company may assign or transfer this agreement to any third party without consent. User may not assign, license or otherwise transfer any or all of its rights under this Agreement including any password or other access rights.
11.4 Force Majeure
Neither party shall be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
The Company may subcontract obligations under this Agreement but will remain liable to User for any subcontracted obligations.
11.6 Relationship Between Parties
Nothing contained in this Agreement shall be construed to constitute either party hereto as the joint venturer, partner, employee, agent or other representative of the other party hereto. Neither party shall make any representation which causes, or may cause, a third party to believe otherwise.
11.7 No Waiver
Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, then the remaining provisions hereof shall remain unaffected and in full force and effect.
11.9 No Third Party Beneficiaries
This Agreement does not confer any benefits on any third party unless it expressly states that it does.
11.10 Equitable Relief
Nothing in this Agreement will limit either party’s ability to seek equitable relief.
11.11 Governing Law
This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of Illinois, notwithstanding any conflicts of law principles.
The following Sections will survive expiration or termination of this Agreement: Section 4 (User Data and Security), Section 5 (Intellectual Property), Section 7 (User Feedback), Section 8 (Disclaimer), Section 9 (Limitation of Liability), Section 10 (Indemnification), and Section 11 (Miscellaneous).
11.13 Entire Agreement
This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement.
Headings used throughout this Agreement are for reference purposes only and will not have any effect on the interpretation of this Agreement.