Terms and Conditions
MDS Medical Customer Portal Access Agreement
PLEASE READ THIS MDS MEDICAL CUSTOMER PORTAL ACCESS AGREEMENT (“Agreement”) CAREFULLY BEFORE SELECTING the “Terms and Conditions” CHECKBOX. BY CLICKING THE “Submit” BUTTON BELOW, THE PERSON ACCEPTING THIS AGREEMENT (“Licensee”) IS CONFIRMING LICENSEE’S AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF LICENSEE IS REPRESENTING A CORPORATION, LLC, PARTNERSHIP, OR OTHER NON-INDIVIDUAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT ON BEHALF OF THAT ENTITY REPRESENTS AND WARRANTS THAT THEY HAVE ALL NECESSARY AUTHORITY TO BIND THAT ENTITY AND FURTHER AGREE TO PERSONALLY BE BOUND TO OBSERVE THIS AGREEMENT AS A REPRESENTATIVE OF THAT ENTITY. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, IMMEDIATELY CLOSE THE BROWSER WINDOW AND DO NOT CHECK THE 'Terms and Conditions" CHECKBOX OR CLICK SUBMIT.
WHEREAS, Licensee and Micro Development Services, dba MDS Medical ("MDS") (hereinafter referred to as “we”, “us” or “our”) have entered into one or more certain Agreements for PrimeSUITE and related information technology services (“Servicing Agreement”), which Servicing Agreement includes, without limitation, that certain Business Associate Agreement to provide certain services that involve the use or disclosure of Protected Health Information (as defined in the Business Associate Agreement); and
WHEREAS, Licensee desires to access and use our MDS Medical customer portal website which contains medical, billing, financial and other information relating to Licensee’s practice (“Customer Portal”), including but not limited to Licensee patient data, Licensee claims, and Licensee contact information (collectively, the “Data”), and we desire to provide Licensee with access to the Customer Portal for the Data.
NOW, THEREFORE, in consideration of the mutual promises herein contained, the contractual relationship of the parties established in one or more order forms and Servicing Agreements, and the Business Associate Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto covenant and agree as follows:
License Grant; Termination.
Subject to the terms and conditions of this Agreement, we hereby grant to Licensee a limited, non-transferable, non-exclusive and revocable license to access and use, in accordance with this Agreement, the Customer Portal as made available to Licensee by us, solely in connection with the services provided by us to Licensee under the Servicing Agreement. This Agreement does not grant to Licensee any ownership interest in the Customer Portal. Rather, Licensee has a license to access and use the Customer Portal solely as provided in this Agreement. Licensee hereby agrees and acknowledges that we (and our licensors) own all right, title, and interest in the Customer Portal and Licensee will not contest those rights or engage in any conduct contrary to those rights. Licensee hereby grants you a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Customer Portal or any of your other services any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, including Authorized Client Users and Authorized Client Manager Users. This Agreement shall terminate immediately and automatically upon the termination of the Servicing Agreement. We may also revoke this Agreement at any time without prior notice, for any reason or for no reason.
Permitted Use and Restrictions; Confidential Information.
“Authorized Client User” means any person designated by Licensee to access and use the Customer Portal solely for the benefit of Licensee and solely subject to the terms of this Agreement and in accordance with all applicable laws. “Authorized Client Manager User” means any person designated by Licensee to access and use the Customer Portal solely for the benefit of Licensee and solely subject to the terms of this Agreement and in accordance with all applicable laws. Authorized Client Manager Users are permitted to access the Data related to all Authorized Client User accounts for its registered user accounts. Licensee will designate at least one Authorized Client Manager User for purposes of administering the access of all Authorized Client Users to the Customer Portal (“Administrator(s)”). Licensee agrees that it is solely responsible for: (i) the issuance, activation, deactivation, security and use of log-on names and passwords associated with Licensee’s and its Authorized Client Users’ and Authorized Client Manager Users’ access of the Customer Portal (“Log-on Information”); (ii) ensuring that each Authorized Client User and Authorized Client Manager User will not disclose such Log-on Information to any other person or entity; (iii) ensuring that each Authorized Client User and Authorized Client Manager User will not permit any other person or entity to use his/her Log-on Information; (iv) ensuring that each Authorized Client User, Authorized Client Manager User will use the Customer Portal and/or Data consistent with such Authorized Client User’s, Authorized Client Manager User's, or Administrator’s authorized business responsibilities as established and determined by Licensee; and (v) ensuring that each Authorized Client User and Authorized Client Manager User will use the Customer Portal and/or Data in accordance with the terms and conditions of this Agreement. Licensee agrees that it is solely responsible for: (i) advising each Authorized Client Manager User and each Authorized Client User of his/her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (ii) any and all damages, costs and expenses caused by or in any way arising from any use of any Log-on Information (whether authorized or unauthorized) and any use of the Customer Portal by Authorized Client Users, Authorized Client Manager Users and anyone accessing the Customer Portal using Log-on Information issued by or for Licensee. Licensee will immediately deactivate the Log-on Information for any Authorized Client Manager User and any Authorized Client User that is not longer authorized to access the Customer Portal (due to termination, change of position, end of assignment or otherwise). Licensee agrees that it will notify you immediately if Licensee believes the security of any Log-on Information has been compromised in any way.
Licensee expressly agrees that it will not: (i) use the Customer Portal in manner other than as permitted by this Agreement; (ii) provide access to the Customer Portal to any third party; (iii) reverse engineer the Customer Portal or assist another in the same; (iv) interfere, or attempt to interfere, with the Customer Portal in any way; (v) engage in any fraudulent, illegal or unauthorized use of the Customer Portal.
We will determine Licensee’s compliance with the terms of this Agreement in our sole discretion and our decision shall be final and binding. Any violation of the terms of this Agreement may result in restrictions on Licensee’s access to and use of all or part of the Customer Portal and may be referred to law enforcement authorities. Licensee agrees that we may suspend Licensee’s access to and use of the Customer Portal as a result of: (i) any untimely payment of any amounts due by Licensee to us under this Agreement, the Servicing Agreement or any other agreement entered into by and between Licensee and us; (ii) Licensee’s breach of the terms of this Agreement; (iii) there is a threat or attack on the Customer Portal or other event that may create a risk to the Customer Portal, us or any other customer of ours; (iv) Licensee or any of its Authorized Client Users, Authorized Client Manager Users, or Administrators in any way harass, intimidate, or violate Rules of Conduct; (iv) Licensee’s or its Authorized Client Users’ use of the Customer Portal disrupts or poses a security risk to the Customer Portal, patient Protected Health Information (“PHI”), any other customer of ours, may harm our systems or those systems of any other customer of ours, or may subject us or any third party to liability.
Licensee acknowledges the proprietary and confidential nature of the Customer Portal and any and all of our information provided to Licensee through the Customer Portal, including but not limited to our trade secrets, intellectual property and proprietary rights, business and financial information, technical information, processes and the terms of this Agreement (collectively, the “Confidential Information”). Licensee agrees not to: (i) use Confidential Information for any purpose other than use of the Customer Portal pursuant to this agreement: and (ii) disclose our Confidential Information to any third party without our prior written consent. At a minimum, Licensee agrees to limit access to our Confidential Information to those advisors, attorneys, contractors, consultants and employees having a need to know our Confidential Information for that party either to exercise its rights or fulfill its obligations, as applicable, under this Agreement.
Accuracy of Information; HIPAA Compliance.
Licensee acknowledges and agrees that: (i) any and all information Licensee provides, transmits and/or transfers to us, through the Customer Portal or by other means, that may reasonably be understood to be used by us in connection with the Customer Portal will be accurate and will comply with the Health Insurance Portability and Accountability Act (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH”); and (ii) Licensee is solely responsible for the accuracy of such information and compliance with HIPAA and HITECH with regard to the transmittal and provision of such information. Licensee represents and warrants that it has all rights and authorizations necessary to provide, transmit and/or transfer any such data that Licensee provides to us.
Rules of Conduct.
By registering and using the MDS Customer Portal, you agree that you will not post content that is abusive, threatening, or in violation of any laws. Violation of the following Rules of Conduct may result in the removal of comments/entries and termination of Licensee's Customer Portal access: (a) Do not abuse, harass, or defame. No personal attacks. Insulting, attacking, or denigrating MDS, an MDS employee, community member, or member company are not allowed under any circumstances. We have zero tolerance for taking an argument about any topic to a personal level; (b) No defamatory speech. Denigration of or threats against any group of people due to their race, religion, nationality, gender, or sexual orientation will not be tolerated and are grounds for immediate termination of Agreement; (c) No spam or solicitation. This includes incentives (commercial or otherwise) to join other communities or attend 3rd party events. Any spam posts will be removed immediately; (d) Report abuse or spammers. Users may report offenses of these Rules to firstname.lastname@example.org; (e) All messages express the views of the author, and MDS will not be held responsible for the content of any message; and (f) MDS has the right to remove, edit, close, or move any post, comment, or thread for any reason at any time.
Licensee agrees to indemnify, defend and hold harmless us, our affiliates, and each of their officers, directors, employees, agents, suppliers, licensors, third party partners, successors and assigns from and against all claims, losses, expenses, damages and costs, including, without limitation, attorneys’ fees, arising from or relating to: (a) any breach by Licensee of the terms of this Agreement; (b) any content, data or other information provided by Licensee to us, through the Customer Portal or by other means, that may reasonably be understood to be used by us in connection with the Customer Portal, including but not limited to any failure by Licensee to comply with HIPAA and HITECH; (c) Licensee’s access, use or misuse of the Customer Portal; (d) Licensee’s failure to comply with any and all applicable laws, orders, codes and regulations, including, without limitation all privacy laws, in Licensee’s use of the Customer Portal; and (e) any access to the Customer Portal using Licensee’s Log-on Information.
Warranty Disclaimer and Limitation of Liability.
LICENSEE AGREES THAT THE CUSTOMER PORTAL, INCLUDING ALL CONTENT AND DATA ON AND SERVICES OFFERED IN CONNECTION WITH THE CUSTOMER PORTAL, INCLUDING ANY LINKS TO THIRD PARTY WEBSITES, ARE PROVIDED ON AN "AS IS" BASIS WITH NO WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER PORTAL, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUSES OR OTHER MALICIOUS OR UNAUTHORIZED CODE OR PROGRAMS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT THE CUSTOMER PORTAL WILL BE AVAILABLE OR THAT THE INFORMATION ACCESSIBLE VIA THE CUSTOMER PORTAL IS ACCURATE, COMPLETE OR CURRENT. AS A CONDITION OF LICENSEE’S USE OF THE CUSTOMER PORTAL, LICENSEE WARRANTS TO US THAT LICENSEE WILL NOT USE THE CUSTOMER PORTAL FOR ANY PURPOSE THAT IS UNLAWFUL OR PROHIBITED BY THE TERMS OF THIS AGREEMENT, THE SERVICING AGREEMENT, THE BUSINESS ASSOCIATE AGREEMENT OR ANY OTHER AGREEMENT ENTERED INTO BY AND BETWEEN LICENSEE AND US. Licensee agrees that it will make no claim against us for lost data, inaccurate output, work delays or lost profits resulting from access or use of the Customer Portal.
LICENSEE AGREES THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, WHETHER OR NOT WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, TORT, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH ANY ERRORS OR OMISSIONS, VIRUSES OR OTHER MALICIOUS OR UNAUTHORIZED CODE OR PROGRAMS, THE USE, INABILITY TO USE, OR PERFORMANCE OF THE CUSTOMER PORTAL OR THE DATA, CONTENT OR SERVICES AVAILABLE FROM THE CUSTOMER PORTAL OR ANY LOSS, PERSONAL INJURY, PROPERTY DAMAGE, BUSINESS INTERRUPTION OR OTHER DAMAGES IN CONNECTION THEREWITH. WITHOUT LIMITING THE FOREGOING, OUR LIABILITY IN CONNECTION WITH THE CUSTOMER PORTAL, DATA, THE SERVICES OR THE TERMS OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY LICENSEE FOR THE LICENSE TO ACCESS AND USE THE CUSTOMER PORTAL UNDER THIS AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Either party shall be excused from any delay or failure in performance hereunder to the extent caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, third-party labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the terms of this Agreement shall continue in effect. Licensees agree that no joint venture, partnership, employment, or agency relationship exists between Licensee and us as a result of this Agreement or Licensee’s access or use of the Customer Portal. Our performance of the terms of this Agreement is subject to existing laws and legal process, and nothing contained in these terms is in derogation of our right to comply with law enforcement requests or requirements relating to Licensee’s access and use of the Customer Portal or information provided to or gathered by us with respect to the Customer Portal. A printed version of this Agreement and of any notice relating thereto given in electronic form shall be admissible in judicial, arbitration or administrative proceedings based upon or relating to the terms of this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Arizona, without regard to conflict of law principles. In any litigation or arbitration related to this Agreement, the prevailing party will be entitled to recover (from the other party) the prevailing party’s reasonable attorney's fees, court costs, and expert witness fees. Without limiting the foregoing, any provision that by its nature is intended to survive expiration or termination of this Agreement shall survive expiration or termination of this Agreement, including but not limited to the confidentiality provisions in Section 2, the indemnification obligations in Section 5 and the disclaimer of warranties and limitation of liability in Section 6.