LICENSE AND SERVICES AGREEMENT FOR PATIENT AND OTHER AUTHORIZED USERS
Standard Terms & Conditions
This License and Services Agreement: Standard Terms and Conditions (“Agreement”), sets forth the terms of your license to use the services provided by ConsoliDoc, LLC (“ConsoliDoc”). The terms in this Agreement are binding on you and ConsoliDoc. The terms in this Agreement govern our relationship and set forth each of our rights, responsibilities and obligations to each other. In order to accept these terms, you must scroll down to the bottom of this Agreement and click the “Accept” button.
You are the subscriber of the Services and may be identified in this Agreement as “Licensee,” “You,” “you,” “Your,” or “your”. You are the individual that registered for the Subscription(s) and are at least 18 years of age or are a Facility. ConsoliDoc and You may be referred to generically and individually as a “party” or collectively as the “parties.”
This Agreement may include hyperlinks to other terms. Please review those links by clicking on them. A new window will popup so that you will be able to review those linked terms. The terms linked to this Agreement are incorporated herein by reference as if fully stated herein. When done reviewing the linked terms, close the window and resume your review of the Agreement.
ConsoliDoc is a software as a service (“SaaS”) provider and the owner of a proprietary software platform known as the ConsoliDoc System;
You desire to subscribe to the services provided by ConsoliDoc related to the storage, sharing and receiving of your medical and health information and depending on the plan you have chosen, the medical and health information of your family, which may include your spouse, domestic partner or your children that you are the parent or guardian over.
In consideration of the mutual covenants and upon the terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
- “Account” means the account that you create through the registration process and through which you receive the Services and you pay for the Services.
- “Applicable Law” means all applicable state and federal United States laws and regulations of a Governmental Authority, which include, without limitation, applicable data protection and privacy laws.
- “Application(s)”means the applications/software, including any integrations by ConsoliDoc with Your Data, which includes, but is not limited to, any mobile apps or online website applications by which or through which the Services are offered or provided.
- “Authorized Users” means, collectively, to the extent applicable, you and other End Users (other than yourself) that you authorize to use or access your Account or any part of your account, including, Managers (other than yourself), Managed Users, and Facilities, provided that the foregoing have registered with ConsoliDoc and obtained unique user credentials, through the creation of a unique identification and password to use the Services provided to or through your Account.
- “ConsoliDoc Property” means the ConsoliDoc System and all other materials, information and methods provided by ConsoliDoc and ConsoliDoc’s Confidential Information.
- “ConsoliDoc System” means the proprietary scalable technology platform for hosting, providing and delivering services including, but not limited to, Applications, content management system, data management system, APIs, mobile applications, desktop applications, any code or innovation developed related to or for the ConsoliDoc System or the provision of any revisions, enhancements, upgrades or improvements to the ConsoliDoc System or any other technology developed by ConsoliDoc that in any way relates to the provision of the Services, whether developed, licensed or acquired by ConsoliDoc.
- “Confidential Information” means any information, technical data, or know-how, whether or not a statutory “trade secret,” of the Disclosing Party, including, but not limited to, that which relates to product plans, Intellectual Property, products, services, End Users, employees, documents, markets, software, developments, inventions, processes, designs, drawings, engineering, proprietary ideas, marketing, product pricing or financial information of the Disclosing Party. Confidential Information shall include, without limitation, the terms and conditions of the Agreement and all Your Data. The foregoing notwithstanding, Confidential Information shall not include any information which: (a) is already known by means not subject to a confidentiality obligation of the Receiving Party at the time disclosed by the Disclosing Party; (b) is or becomes available through public sources apart from any unauthorized disclosure by the Receiving Party; (c) is obtained by the Receiving Party from a third party who has the right to disclose the same; (d) is disclosed in accordance with the specific written approval of the Disclosing Party; or (e) is independently developed by the Receiving Party without use of the Confidential Information disclosed hereunder (collectively, “Confidential Information Exceptions”). Except to the extent a Confidential Information Exception applies, Your Data is your Confidential Information.
- “Disclosing Party” means the party to this Agreement that discloses Confidential Information to the Receiving Party.
- “Documentation” means collectively any documentation (in any format) and other information relating to the Services prepared by or on behalf of ConsoliDoc and provided or made available to You by ConsoliDoc, including, without limitation, marketing materials and the user and reference materials, operating manuals and videos, user manuals and videos, training materials, technical manuals, supporting materials and other information relating to the Services by ConsoliDoc.
- “End User” means an individual or Facility that has registered with ConsoliDoc and obtained unique user credentials through the creation of a unique identification and password to use the Services.
- “Error” means (a) any problem that adversely interferes with access to or use of any material portion of the Services other than those caused by the wrongful conduct or use of the Services in a manner not permitted by this Agreement by End Users; or (b) any Services execution that is either materially incorrect or is other than expected based on the Documentation (excluding marketing materials); and which ConsoliDoc can replicate or End User can duplicate.
- “Exhibit” means a document (including addenda and other related attachments) that is linked through this Agreement.
- “Facility” or “Facilities”means one or more providers of medical or medical related services to You or any Managed User.
- “Fees” means payment to ConsoliDoc as set forth in the applicable terms for the Subscription when you registered to purchase the Services or that you later purchase through ConsoliDoc.
- “Governmental Authority” means any state or federal governmental, regulatory or administrative body, agency or authority of the United States, including without limitation, any court or judicial authority, in the United States to the extent the foregoing are applicable to ConsoliDoc or the Services, in any jurisdiction within the United States where ConsoliDoc provides the Services.
- “Intellectual Property” means all rights and interests in all (a) patents, patent applications, and continuing (continuation, divisional, or continuation-in-part) applications, re-issues, extensions, renewals, and re-examinations thereof and patents issued thereon; (b) registered and unregistered trademarks, service marks, trade names, domain names, and all of the associated goodwill; (c) registered and unregistered copyrights and all other literary and author’s rights or moral rights; (d) trade secrets, know how, show-how, concepts, ideas, methods, processes, designs, discoveries, improvements, and inventions, whether patentable or unpatentable; (e) all other intellectual, industrial, and proprietary rights now or hereafter coming into existence throughout the world; (f) applications for and registrations, renewals, and extensions of any of the foregoing; and (g) exclusive and non-exclusive license rights to any of the foregoing.
- “Maintenance and Support Services” shall have the meaning set forth in Section 3.1.
- “Managed User” means an End User that is either or both: (i) a biological or adopted child of yours that is under 18 years old; or (ii) a person that you have guardianship over due to mental incapacity or infirmity.
- “Manager” means You and any Authorized User that is 18 years of age or older that you designate in your Account as having authority to manage one or more Managed Users in your Account.
- “Patient means the End User whose medical records are being stored on the ConsoliDoc System through a Subscription.
- “Paying End User” means the named End User that through registration has agreed to pay the Fees for the Subscription.
- “Personally Identifiable Information” or “PII” means the following related to an End User: (i) any information relating to an identified or identifiable natural person, such that the person can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, social security number or other government issued number, date of birth, address, telephone number, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any information from which identification or contract information of an individual person can be derived; (iii) any PHI; or (iv) any other information that Applicable Law deems to be personal or personally identifiable information.
- “Protected Health Information” or “PHI” has the meaning ascribed to it under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended, and inclusive of the Privacy Rule, Security Rule, Breach Notification Rule and Enforcement Rule (45 CFR Parts 160 and 164) promulgated by the United States Department of Health and Human Services (collectively, “HIPAA”).
- “Receiving Party” means the party to this Agreement that receives Confidential Information from the Disclosing Party.
- “Service Level Agreement” or “SLA” is the Service Level and support agreement as set forth in Exhibit A, which can be navigated to by clicking here.
- “Service Levels” means the minimum acceptable service levels as set forth in Exhibit A.
- “Service Updates” means any modifications to or improvements of the Services.
- “Services” means those services provided through your Account pursuant to this Agreement.
- “Site” means ConsoliDoc’s website at www.ConsoliDoc.com, and other related websites, blogs, domains, and mobile sites maintained by ConsoliDoc.
- “Subcontractor” or “subcontractor” or “service provider”means any entity with which ConsoliDoc has a direct contractual relationship whereby such entity fulfills some or all of the obligations of ConsoliDoc in or related to this Agreement or related to any other services it may provide.
- “Subscription(s)” means the Subscription You purchased or that was purchased on your behalf to access and use the Services, for a limited period of time using a unique access code or login, for yourself or any End Users.
- “Subscription Term” means the period that You have subscribed to access the Services.
- “Term” shall have the meaning set forth in Section 6.1.
- “Unauthorized Access” means access to or use of Your Data that is residing on the ConsoliDoc System other than (a) through the use of your or any Authorized Users’ generated password that, consistent with the settings and permissions in the respective Service, has rights to access Your Data (in any respect), or (b) by ConsoliDoc personnel or Subcontractors whose access to or use of Your Data is for the purpose of performance of the Service as permitted under the terms of this Agreement and Applicable Law.
- “Your Data”means, as between you and ConsoliDoc, all Personally Identifiable Information that You or any Authorized User uploads to or inputs in the ConsoliDoc System through your Account.
- Provision of Services.
- Services. The scope of the Services are based upon the Subscription you purchased or that was purchased on your behalf. A description of the Services for each Subscription plan is set forth on the Site at the time your Subscription is initially purchased.
- Maintenance and Support.
- Support Services. At all times during the Term of this Agreement, ConsoliDoc shall provide reasonable maintenance and technology support services as more fully described in Exhibit B, which can be navigated to by clicking here, (the “Maintenance and Support Services”) for the Services to the Patient or Manager of the Patient.
- Failure to Maintain and Support. If ConsoliDoc fails to maintain the agreed upon Service Levels as provided in the SLA, You will be entitled to the sole and exclusive remedies set forth in the SLA, which is attached as Exhibit A.
- Grant of Licenses.
- Uses not permitted. You and each Authorized User shall not: (a) reverse engineer, copy, modify, sublicense, rent, lease, convey, translate, decompile, disassemble or reverse engineer the ConsoliDoc System or any portion of the ConsoliDoc System; (b) make derivative works based upon the ConsoliDoc System or any portion of the ConsoliDoc System; (c) access the ConsoliDoc System for competitive purposes; (d) use the ConsoliDoc System for timesharing or service bureau purposes, or any purpose other than its own internal use; (e) make any attempt to circumvent the technological measure(s) that controls access to or use of ConsoliDoc System; (f) store, cache, use, upload, distribute, or sublicense Services (other than Your Data) in violation of the terms of this Agreement; (g) use the ConsoliDoc System or any portion of it to create, use, send, store, or run material containing software viruses, worms, Trojan horses or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Services or the ConsoliDoc System; (h) publish or in any other way publicly communicate the results of benchmark tests run on beta or staging environments of the ConsoliDoc System without the prior written permission of ConsoliDoc; or (i) permit or assist any other party to do any of the foregoing.
- License to ConsoliDoc. Subject to the terms and conditions of this Agreement, You hereby grant to ConsoliDoc, during the term, a non-exclusive, non-transferrable, limited license to use Your Data pursuant to the terms of this Agreement and for the sole purpose of ConsoliDoc’s performance of its obligations under this Agreement. The foregoing license shall be valid only during the Term as defined in Section 6.1 below. ConsoliDoc’s rights in and to the Your Property under this Agreement, including, but not limited to, any license or other rights provided to ConsoliDoc herein, shall terminate immediately upon termination of this Agreement. You reserve all ownership and other rights in Your Data not expressly included herein.
- Statistical Data. ConsoliDoc may (a) compile statistical and other usage and technical information related to the performance, operation and use of the Services, and (b) use data from the Services in aggregated and anonymized form for security and operations management, to create statistical analyses, and for research and development purposes (clauses (a) and (b) are collectively referred to as “Statistical Data”). Statistical Data must only be composed of aggregated data that has been anonymized and de-identified so that it does not identify You or any Authorized User’s PII. Statistical Data may also be derived from PHI. You grant ConsoliDoc a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable and perpetual license to use the Statistical Data and incorporate it into the ConsoliDoc System, the Services or otherwise use for the purposes set forth above and all other lawful purposes.
- Feedback. To the extent that You own feedback given to ConsoliDoc, You grant ConsoliDoc a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable and perpetual license to use and incorporate into the ConsoliDoc System, the Services or otherwise use for any other lawful purpose, the feedback.
- Payment Terms
- Payments. You agree to the pricing, payment and billing policies as set forth herein and on the Site related to the Subscription you purchased. All Fees are non-refundable and non-transferable except as expressly provided in this Agreement. All Fees and applicable taxes, if any, are payable in United States dollars. You are solely responsible for the payment of, and shall pay when due, all applicable sales and use taxes and similar fees now in force, enacted or imposed in the future on the delivery of the Services for your Subscription and the Subscriptions of each Managed User who’s Subscription was created under your Account, along with any related transactions (except for taxes assessed on ConsoliDoc’s net income or personal property). In addition to any Fees, you are responsible for any charges incidental to using the Services, for example, charges for internet access, data roaming, and other data transmission charges. In order to subscribe to the Services, you must provide ConsoliDoc with a valid credit card or other payment method approved by ConsoliDoc for payment of the applicable Fees. You authorize ConsoliDoc to charge your credit card or other payment method used for the purchase of Subscriptions under your Account, recurring Fees, and for any other recurring Subscription related Fees as provided for in this Agreement. Notwithstanding the foregoing, if you are not the Paying End User, you are ultimately responsible for paying the Fees for your Subscription and the Subscription of any of your Managed Users in the event that the Paying End User is someone other than you and discontinues paying your Subscription(s).
- Recurring Fees. The Services are charged monthly or yearly on a recurring basis, depending on the payment option you chose when purchasing your Subscription for the Services, and are thereafter charged on a monthly or yearly basis automatically on the anniversary date of your Subscription. You agree to the recurring Fees and authorize ConsoliDoc to charge the payment method you used to subscribe to the Services or that are otherwise on file with ConsoliDoc. Fees for the Services will automatically renew, unless we terminate it, or you notify us by email of your decision to terminate your Subscription. You must cancel any such Subscription before the next billing cycle for your Subscription in order to avoid billing of Fees for the renewal term to your credit card. All Fees and any other charges are nonrefundable and there are no refunds or credits for partially used periods. The amount charged on the next billing cycle will be automatically updated to reflect any changes to the Subscription, including upgrades or downgrades. Unless previously terminated, if you have a monthly or yearly Subscription, your credit card or other payment method used will be charged each month or year (12 month period), as the case may be, in advance. Unless previously terminated, if you have a monthly Subscription, your credit card on file or other payment method used will be charged monthly on the monthly anniversary date of the charge for the initial Subscription Fees. Unless previously terminated, if you have an annual Subscription, your credit card on file or other payment method used will be charged annually on the annual anniversary date of the charge for the initial Subscription Fees. Subscription changes, including downgrades, may result in loss of access to features of the ConsoliDoc System or other content, features, or an increase or reduction in the amount of available capacity for storage of Your Data. All prices are subject to change upon notice.
- Term and Termination.
- Term. This Agreement will continue during the term of Your Subscription (the “Term”).
- If you or any Authorized User breaches the terms of this Agreement or if you are an Authorized User under someone-else’s account and you breach the terms of this Agreement, ConsoliDoc will have the right to suspend, disable or terminate your Account, terminate the account of the Authorized User, or terminate this Agreement, at its sole discretion and without prior notice to You or any other Authorized User. ConsoliDoc reserves the right to revoke Your access or any Authorized User’s access to the Services at any time, with or without cause. In the event that ConsoliDoc terminates this Agreement for Your or an Authorized User’s breach, You will remain liable for any and all amounts due hereunder. You may cancel your Account at any time by clicking here, or by sending an email to help@ConsoliDoc.com.
- . In the event of termination of this Agreement for any reason, all licenses granted hereunder shall automatically and immediately terminate. In addition, upon expiration or termination of this Agreement, ConsoliDoc, provided all undisputed fees have been paid to ConsoliDoc, shall provide or make available to You a copy of all Your Data, in an industry standard format, chosen by ConsoliDoc, or at Your election securely destroy such data, provided that ConsoliDoc shall have the right to maintain and use Statistical Data as set forth in Section 4.5. After fourteen (14) days following the expiration or termination of this Agreement, ConsoliDoc will delete all End User Data in Your Account. You authorize ConsoliDoc, upon expiration or termination of this Agreement, to contact Authorized Users that are at least 18 years of age, about subscribing to the Services directly.
- Proprietary Rights.
- Ownership of ConsoliDoc Property. You acknowledge that, as between ConsoliDoc and You, ConsoliDoc is the exclusive owner of all right, title and interest in and to the ConsoliDoc Property (including any transformations, improvements and derivative works thereof). You may use ConsoliDoc Property only as provided for under this Agreement and in no other manner, unless otherwise agreed to in writing. Nothing in this Agreement shall be deemed to convey or transfer to You any ownership rights in or to the ConsoliDoc Property.
- Confidential Information.
- Treatment of Confidential Information. Each party to this Agreement shall treat all Confidential Information of the other party in accordance with the terms of this Agreement and with the same degree of care, but no less than reasonable care, as it uses to protect its own Confidential Information of like nature. Except as otherwise expressly provided herein, neither party shall use, distribute or disclose to any third party Confidential Information of the other party, in whole or in part, except as set forth in this Agreement. Your Confidential Information may be used by ConsoliDoc’s employees, consultants and service providers for the purposes of providing the Services, enforcing its rights, and related purposes.
- Disclosure of Confidential Information Pursuant to Legal Process. Confidential Information may be divulged pursuant to statute, regulation, or as otherwise required by law or the order of a court of competent jurisdiction, provided that the Receiving Party provides reasonable prior written notice to the Disclosing Party and cooperates with the Disclosing Party, at the expense of the Disclosing Party, in seeking a protective order, in order to limit to the extent possible the scope of such disclosures.
- Remedies. Except as expressly provided in this Agreement, if the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.
- Security and Compliance.
- Your Account. You are responsible for all activity occurring under your Account, which includes, but is not limited to, the activity of all Authorized Users. You shall ensure that you and any Authorized User accessing your Account will abide by all Applicable Laws related to Your and your Authorized Users use of the Services. You shall: (a) notify ConsoliDoc promptly upon learning of any unauthorized use of any credentials, including, without limitation, passwords, to gain unauthorized access to an account or any other breach of security; (b) notify ConsoliDoc promptly and use reasonable efforts to promptly stop any unauthorized use, copying, or distribution of the Services that is known or suspected by You or any Authorized Users; and (c) not impersonate another ConsoliDoc user or provide false identity information to gain access to or use the Services or the ConsoliDoc System.
- Representations and Warranties; Disclaimer.
- General Representations and Warranties. You represent and warrant that: (a) you are 18 years of age or older; (b) you have the right, power and authority to enter into this Agreement, to grant the licenses granted herein, to make the representations and warranties set forth herein, and to fully perform all of your obligations hereunder; (c) you have the legal authority to enter this Agreement and any other Agreements related to the Services for and on behalf of any Managed User; and (d) you shall comply with all Applicable Laws related to your obligations under this Agreement and your use of the Services.
- DISCLAIMERS OF WARRANTY. CONSOLIDOC DOES NOT MAKE ANY REPRESENTATIONS, WARRANTies, OR GUARANTies, as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of THE SERVICES, CONSOLIDOC SYSTEM, UPDATES, DOCUMENTATION, SUPPORT AND/OR ANY OTHER CONSOLIDOC services PROVIDED OR offered hereunder. THE services AND CONSOLIDOC SYSTEM ARE PROVIDED HEREUNDER are PROVIDED STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Open Source. Parts of the software for the ConsoliDoc System may be subject to the GPL (General Public License) for open source software, and all warranties are disclaimed for such parts by the Free Software Foundation, Inc. See the GNU General Public License for more details. Similarly, parts of such software may be subject to the MIT License for open source software, and therefore, the following restrictions: MIT grants permission, free of charge to any person obtaining a copy of the software and associated documentation files, to deal in the software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the software, and to permit persons to whom the software is furnished to do so, subject to the following conditions and notwithstanding anything to the contrary in this Agreement: the software is provided “AS IS” without warranty of any kind, express or implied, including but not limited to, the warranties of merchantability, fitness for a particular purpose and non-infringement, In no event shall the authors or copyright holders be liable for any claim, damages or other liability, whether in an action of contract, tort or otherwise, arising from, out of or in connection with the software or the use of other dealings in the software.
- Indemnification by You. You shall indemnify, defend and hold ConsoliDoc and each of its directors, officers, employees, and subcontractors (“ConsoliDoc Indemnified Parties”) harmless from and against any claims, and shall pay for losses, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) to the extent arising from a claim, suit or proceeding brought against ConsoliDoc by a third party based upon your acts or omissions in violation of this Agreement, based upon any of your representations or warranties, or based upon Your Data infringing a United States patent, copyright or trademark, or any claim based upon allegations that You did not provide the necessary disclosures or obtain the required consents for ConsoliDoc to process End User Data (“Claim”). Your obligations with respect to this Section 12.1 are conditioned upon: (a) ConsoliDoc providing You prompt written notice of the Claim or threat thereof, but only to the extent that any delay in notification adversely affected Your ability to defend the Claim; (b) ConsoliDoc giving You full and exclusive authority for the conduct of the defense and settlement of the Claim and any subsequent appeal (provided that You shall not settle or compromise any Claim that does not provide for the full and unconditional release of ConsoliDoc without the prior written consent of ConsoliDoc); and (c) ConsoliDoc giving You all information and assistance reasonably requested by You, at Your expense, in connection with the conduct of the defense and settlement of the Claim and any subsequent appeal
- Limitation of Liability.
- CONSOLIDOC SHALL NOT BE LIABLE TO YOU OR ANY OTHER END USER FOR DISCLOSURE OF END USER DATA, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF CONSOLIDOC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- CONSOLIDOC’S ENTIRE LIABILITY FOR ANY BREACH OF, OR OTHERWISE IN ANY WAY RELATED TO THE SUBJECT MATTER OF, THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT OR IN TORT OR ANOTHER THEORY, SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAID UNDER THE AGREEMENT FROM WHICH THE CAUSE OF ACTION AROSE FOR THE PRECEDING TWELVE (12) MONTH PERIOD. IF NO FEES ARE PAID BY YOU UNDER THE AGREEMENT, THEN CONSOLIDOC’S MAXIMUM LIABILITY FOR ANY BREACH OF, OR OTHERWISE IN ANY WAY RELATED TO THE SUBJECT MATTER OF, THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT OR IN TORT OR ANOTHER THEORY, SHALL NOT IN THE AGGREGATE EXCEED TEN DOLLARS. IF THE END USER AND THE PAYING END USER ARE NOT THE SAME, CONSOLIDOC WILL ONLY BE LIABLE FOR DAMAGES AND SLA CREDITS TO THE END USER AND THE PAYING END USER AGREES AND ACKNOWLEDGES THAT HE/SHE/IT DOES NOT SUFFER ANY DAMAGES DISTINCT OR SEPARATE FROM THE DAMAGES SUFFERED BY THE END USER AND THE RESOLUTION OF ANY CLAIM BY THE END USER WILL BE DEEMED TO RESOLVE THE ASSOCIATED CLAIM OF THE PAYING END USER.
- General Provisions.
- Notices. All notices or other communications required or desired to be sent to you will be through the email address you provided upon registration of your Account or through the private messaging service provided through the ConsoliDoc System, if available. All notices or other communications required or desired to be sent to ConsoliDoc shall be in writing and shall be sent by registered or certified mail, postage prepaid, return receipt requested, or sent by recognized courier service, with charges prepaid, or via facsimile transmission, with electronic confirmation, to the following address:
If to ConsoliDoc:
725 S. Adams Rd.
Birmingham, MI 48009
- Force Majeure. ConsoliDoc shall not be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by any cause beyond its reasonable control, and further provided that, in any event, if any one or more force majeure events singly or collectively cause a required performance to be delayed by more than thirty (30) days, you may terminate this Agreement by delivery of written notice of termination.
- No Assignment. You may not, directly, indirectly, assign all or any part of this Agreement or your rights hereunder or delegate performance of any of your duties hereunder without the prior written consent of ConsoliDoc.
- Governing Law; Consent to Jurisdiction; Interpleader.
- Choice of Law; Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Michigan, excluding that body of law related to choice of laws. Any action or proceeding brought to enforce the terms of this Agreement or to adjudicate any dispute arising hereunder shall be brought exclusively in the appropriate state or federal courts sitting in Oakland County, Michigan. Each of the parties hereby submits itself to the exclusive jurisdiction and venue of such courts for purposes of any such action.
- Waiver of Class Action and Private Attorney General Claim. EACH PARTY WAIVES THE RIGHT TO PURSUE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.
- Interpleader. If any controversy arises among you and/or any other End User related to this Agreement, ConsoliDoc shall have the right to consult and hire counsel and/or to institute appropriate interpleader action to determine the rights of the parties, including, without limitation, rights related to Personally Identifiable Information related to Managed Users. You will be responsible for all costs and fees, including without limitation, attorney’s fees, that ConsoliDoc incurs related to any interpleader action.
- Limitation of Actions. No proceeding, regardless of form, arising out of or related to the Agreement may be brought by You or any other End User more than one-year after the claim accrued.
- Waiver. No failure or delay by ConsoliDoc in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. Any waiver by ConsoliDoc of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate as or be construed as a waiver of such provision respecting any future event or circumstance.
- Headings. The headings of the sections of this Agreement are for reference only and shall not modify, define or limit any of the terms or provisions of this Agreement.
- Modification. No modification or amendment to this Agreement shall be effective unless in writing and signed by both parties to this Agreement.
- Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations and understandings between the parties both oral and written.
- Counterparts. This Agreement may be executed electronically in one ormore counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts shall have been signed by each party and delivered to the other party.
- The following Sections will survive the termination or expiration of this Agreement: 4.4 (Statistical Data); 5 (Payment Terms), 8 (Proprietary Rights), 9 (Confidential Information), 11 (Representations and Warranties), 12 (Indemnification), 13 (Limitation of Liability), 14 (General Provisions), and such other provisions that by their terms are intended to survive termination or expiration.
- Governing Law; Consent to Jurisdiction; Interpleader.
ion and instruction to the Patient or Manager on use of ConsoliDoc System related to your Subscription.
2. Hours of Operation. Maintenance and Support Services via email during ConsoliDoc business hours, Monday through Friday, 9:00 am ET -5:00 pm ET, except on holidays. Maintenance and Support Services by email can be accessed at support@ConsoliDoc.com. Services provided by ConsoliDoc shall be provided in the English language.
This Exhibit A is made a part of the Agreement.
In performing the Services for End User, ConsoliDoc’s level of performance shall be at least equal to the Service Levels set forth in this Service Level Agreement (this “SLA”) at all times during the Term.
Capitalized terms not otherwise defined in this Exhibit A shall have the meanings attributed to them in the Agreement.
“Availability” means that the Services are readily available to End User and operating without material Error, excluding any Outages.
“Emergency Maintenance” means the downtime required by ConsoliDoc for upgrading or maintaining the Services; provided, that ConsoliDoc has provided at least twenty-four hours prior written notice of such downtime and provided that Emergency Maintenance does not occur more than three (3) times per year.
“Error” means (i) any problem that adversely interferes with access to or use of any material portion of the Services other than those caused by End User’s wrongful conduct or use of the Services in a manner not permitted by the Agreement; and/or (ii) any problem that could reasonably be expected to compromise the security or integrity of the Data Subject Data.
“Failure” means any failure of ConsoliDoc to meet a Service Level; but excludes those failures attributable to an Outage Exception.
“Monthly Availability Percentage” means the amount equal to the total number of minutes (multiply the number of calendar days in any given month by the product of 24 times 60) in the applicable calendar month, minus the total Outage time for that month, then divided by the total number of minutes in that month minus Scheduled Downtime/Scheduled Maintenance (not to exceed 4 hours per month), Emergency Maintenance Time (which will not exceed 5 hour per month), Release Maintenance (not to exceed 1 hour per month), periods of unavailability affecting virtualization hypervisor hardware or Subcontractor’s hardware/network failures, periods of unavailability attributable to End User’s negligent acts or omissions, End User’s failure to timely respond to ConsoliDoc in connection with the resolution of any problem and periods of unavailability due to any other Outage Exception (defined below). The amount of “Scheduled Downtime” and/or “Emergency Maintenance” time that exceeds their defined amounts will not be subtracted.
“Outage” means the period (measured in minutes) that the Services are not readily available to End User and/or are operating with material Error; but shall not include: (i) Scheduled Downtime (which will not exceed four (4) hours in aggregate per Outage event); (ii) emergency maintenance activities; (iii) periods of unavailability attributable to End User’s negligent acts or omissions; (iv) End User’s failure to timely respond to ConsoliDoc in connection with the resolution of any Problem; (v) Release Maintenance (which will not exceed five (5) hour in aggregate per month; (vi) Regular Release (which shall be no more than two regular releases per week and downtime will not exceed two (2) hours for each release); (v) periods of unavailability attributable to Release Maintenance; (vi) periods of unavailability attributable to Subcontractors or third party software; or (vii) periods of unavailability due to any other force majeure event (the foregoing exceptions shall generically and collectively be referred to as “Outage Exception(s).”
“Regular Release” means releases of minor product updates for upgrading or maintaining the Services; provided that there shall be no more than two regular releases per week and downtime for these weekly releases does not exceed two (2) hours for each release).
“Release Maintenance” means the downtime required by ConsoliDoc for the regular release for minor service updates provided it will not exceed five (5) hours per month per aggregate.
“Scheduled Downtime” means the downtime required by ConsoliDoc for upgrading or maintaining the Services; provided, that (i) such downtime occurs between the hours of 22:00 ET USA and 5:00 ET USA (or such other hours that End User has previously and specifically approved in writing); and (ii) ConsoliDoc has provided two (2) business days prior written notice of such downtime. This may also be referred to as “Scheduled Maintenance”.
1. Monthly Availability Percentage. ConsoliDoc shall maintain Availability of the hosting Services in accordance with at least the following Monthly Availability Percentage (as defined in this Exhibit A below):
|Monthly Availability Percentage||Service Credit|
|<99.5%||3% of Monthly Fee paid|
3. Service Commitment: With respect to the Services, ConsoliDoc will make the ConsoliDoc available 99.5% of the time each month. If ConsoliDoc’s Monthly Availability Percentage is below 99.5% in a given calendar month, then End User will be eligible to receive a Service Credit as described in Section 4 below.
4. Credit Request and Payment Procedures: To receive a Service Credit, End User must submit a request to ConsoliDoc as described in this Section 3. End User must make the submission to ConsoliDoc End User Support within thirty (30) days from the time the End User becomes eligible to receive the applicable Service Credit. Such submission must include: (a) “SLA Claim” as the subject of the ticket; (b) the dates and times of Unavailable Time for which a credit is being claimed; (c) any documentation of the applicable outage. Each Service Credit will be applied to future amounts payable by the Paying End User in connection with the applicable product. Service Credits are paid on an Account basis and only one Service Credit will be paid per Account, regardless of the number of Authorized Users, and only one Service Credit will be given per month regardless of the number of events giving rise to a Service Credit in a particular month. No refunds or cash value will be given.
5. Entire SLA Liability: With respect to any failure of ConsoliDoc to meet this SLA, this Exhibit states ConsoliDoc’s sole and entire liability to End User and End User’s sole remedy.
Maintenance and Support
This Exhibit B is made a part of the Agreement.
1. Maintenance and Support Services. Except as otherwise expressly provided in your Subscription, ConsoliDoc provides email support only. Email support is for the purpose of providing basic information and instruction to the Patient or Manager on use of ConsoliDoc System related to your Subscription.
2. Hours of Operation. Maintenance and Support Services via email during ConsoliDoc business hours, Monday through Friday, 9:00 am ET -5:00 pm ET, except on holidays. Maintenance and Support Services by email can be accessed at support@ConsoliDoc.com. Services provided by ConsoliDoc shall be provided in the English language.