Terms of Service
WinPatient, Inc. (“WinPatient”, “we”, “us” or “our”) provides marketing software and services for healthcare providers (the “Service”). The Order Form (the “Order Form”) sets forth the Service being purchased by the client who signed the Order Form (“you”, “your” or “Client”), the costs for such Service, and any other relevant details.
These terms of service (the “Terms”) are incorporated by reference into and made a part of any Order Form and govern the relationship between you and WinPatient. All Order Forms are subject to acceptance by WinPatient, in its sole discretion. The Order Form, the Terms, and any documents or links referenced in such documents are together referred to as the “Agreement”.
If you are accepting these Terms on behalf of your employer or another entity, you represent and warrant that (i) you have full legal authority to bind your employer or such legal entity to these Terms, (ii) you have read and understand these Terms, and (iii) you agree, on behalf of the Client, to these Terms.
PLEASE READ THE FOLLOWING TERMS CAREFULLY. Except as otherwise provided in Section 13 (Dispute Resolution and Arbitration), these Terms provide that all disputes between you and WinPatient will be resolved by BINDING ARBITRATION AND YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights. Except as otherwise provided in Section 13 (Dispute Resolution and Arbitration), your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as part of a class action. Please review Section 13 (Dispute Resolution and Arbitration) below for the details regarding your agreement to arbitrate disputes with WinPatient.
- Elements of Service
The Service includes, but is not necessarily limited to, the development of a cloud-based provider website (“Provider Website”), and the provision of cloud-based tools and services, including but not limited to an online booking tool, call tracking, reputation management, profile syndication & management, analytics dashboard, and general online local marketing services (collectively, the “Marketing Software”)
- Provider Website
WinPatient will develop a cloud-based Provider Website for Client. Such Provider Website will integrate elements of the Marketing Software, including but not limited to the WinPatient online booking tool. Client may, but is not required to, submit Content (as defined below) for inclusion on the Provider Website; any such Content submitted by Client and used by WinPatient is subject to Section 3 (Content) and Section 4 (Ownership) below.
- Marketing Software
WinPatient will provide the Marketing Software indicated on the applicable Order Form. Where applicable, WinPatient will make the dashboard element of the Marketing Software (the “Dashboard”) available to Client in accordance with these Terms and any other WinPatient rules and policies then in effect. The Dashboard allows Client to set up an account and password to access the Dashboard. Client may authorize employees or subcontractors to use the Dashboard on behalf of Client (each, a “User”); such Users are subject to these Terms, and Client agrees to be responsible for the actions of all Users who receive authorization to use the Service, including but not limited to their access to the Dashboard.
Client will not, and will not permit or authorize third parties to: (a) rent, lease, resell or otherwise permit unauthorized third parties to access or use the Service; (b) reverse engineer, reverse assemble or otherwise attempt to discover the source code for any software made available as part of the Service; or (c) circumvent or disable any security or other technological features or measures of the Service.
- Responsibilities of the Parties
As part of the Service, WinPatient may perform or assist in performing a function or activity on Client’s behalf that involves the use and disclosure of 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, you and WinPatient agree to be bound by the terms of a Business Associate Agreement, the terms of which are referenced in the Order Form incorporated herein by reference. You (the “Covered Entity,” as referred to in the Business Associate Agreement) hereby agree that you have read and agree to be bound by the terms of the Business Associate Agreement. WinPatient (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.
- Client may provide content to WinPatient for use in WinPatient’s provision of the Service, including but not limited to photos, images, data, text, and other types of works (“Content”). Client retains copyright and any other proprietary rights that Client may hold in the Content that Client provides to WinPatient. By providing Content, Client hereby grants WinPatient a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Client’s Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed).
- Client is solely responsible for any Content that Client provides, and for the consequences of posting or publishing such Content. By providing Content, Client affirms, represents, and warrants that:
- Client is the creator and owner of, or has the necessary licenses, rights, consents, and permissions, to use and to authorize WinPatient to use and distribute Client’s Content as necessary to exercise the licenses granted by Client in this Section 3 and in the manner contemplated by WinPatient, the Service, and these Terms; and
- Client’s Content, and the use of Client’s Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause WinPatient to violate any law or regulation.
Client will retain exclusive ownership of all rights, title and interest in and to all Content which Client provides to WinPatient for the provision of the Services, subject to the rights granted to WinPatient herein. Upon termination or expiration of the Agreement, Client will own solely the domain name of the Provider Website; if the domain name was purchased and registered by WinPatient, WinPatient will take reasonable measures to assign the domain name to Client upon termination or expiration of this Agreement. If the domain name was purchased and registered by Client, Client will retain such ownership of the domain name. For clarity, all other elements of the Provider Website, apart from any Content provided by Client, will be owned solely by WinPatient, and will not be retained by Client upon expiration or termination of this Agreement.
WinPatient will retain exclusive ownership of all rights, title and interest in the Marketing Software (including, without limitation, any modifications, updates and developments provided hereunder), as well as any Content supplied by WinPatient in the provision of the Service, and any visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and any other elements of the Service, subject to the licenses granted herein.
In connection with Client’s use of the Service and pursuant to WinPatient’s acceptance of the Order Form, Client will pay to WinPatient the applicable fees set forth in the Order Form. WinPatient reserves the right to change any of the fees at any time, provided that such changes will not take effect until a new Order Form has been executed and delivered to WinPatient by you. All payments required by these Terms exclude all sales, value-added, use, or other taxes, all of which Client will pay in full, except for taxes based on WinPatient’s net income.
- Implementation Fees
Each party will provide the other with reasonable cooperation, assistance, information and access as may be necessary to initiate Client’s use of the Service. WinPatient will provide non-refundable implementation services to Customer to the extent set forth in the Order Form.
- Billing Subscriptions
There are three options regarding billing subscriptions:
- Monthly Billing Subscription: A twelve-month term in which you are billed a portion (1/12) of the annual contract value on a monthly basis.
- Yearly Billing Subscription: A twelve-month term in which you are required to pay the full annual contract value.
- Quarterly Billing Subscription: A twelve month term in which you are billed a portion (1/4) of the annual contract value on a quarterly basis.
- The applicable billing subscription option will be indicated on the Order Form. Renewal of the subscription is subject to the terms of Section 6 (Term and Termination) below.
WinPatient may from time to time, in its sole discretion, provide special promotions or discounts. If WinPatient offers any special promotions or discounts that provide you with credits or other incentives in connection with the Service (“Promotional Credits”), and you cancel the Service prior to completion of the Initial Term (as defined below) (other than for cause, as set forth below in Section 6 vi.), you will be required to repay to WinPatient the full amount of any corresponding discounts.
- Manner of Payment
You will pay for all amounts payable under this Agreement either by credit card (the “Client Card”), by electronic debit from your bank account (“ACH”), or such other form of payment as WinPatient may, in its sole discretion and with prior approval, permit (included but not limited to payment by check). You will be required to agree to the applicable payment authorization form(s), which also permit WinPatient to recover any Promotional Credits (as set forth above) in the authorized manner. In the case of payment through ACH, no amounts owing are considered paid until the electronic debit has been received by WinPatient’s bank.
- Timing of Payment
Fees, as identified on the Order Form, are due as indicated on the Order Form and in accordance with Client’s billing subscription plan. WinPatient will have the right to charge the Client Card or debit from your account through ACH for fees in accordance with these Terms. You understand and acknowledge that all amounts owed must be paid in advance and that if timely payment is not received, in addition to being in breach of your contractual obligations, the Service may be paused or terminated. Any amounts not paid by you when due will bear interest at the rate of 1.5% per month (or the highest rate permitted by law). You agree to pay all costs of collection, including attorney’s fees and costs and all other legal and collection expenses incurred by WinPatient in connection with its enforcement of its rights under these Terms.
- Term and Termination
This Agreement will continue for the period indicated on the applicable Order Form (the “Initial Term”).
Provided that Client has paid all fees due under this Agreement, this Agreement will automatically renew for successive one (1) year periods (“Renewal Term(s)”) unless either party provides notice of non-renewal in accordance with subsection iii. below. The Initial Term and any subsequent Renewal Term(s) may be collectively referred to as the “Term”.
- Notice of Non-Renewal
To prevent renewal of a subscription, you or we must give written notice of non-renewal and this written notice must be received no more than ninety (90) days but no less than sixty (60) days in advance of the end of the subscription then in effect. If you decide not to renew, you must send the notice of non-renewal by email to email@example.com. Any notice received with less than 60 days’ notice will result in auto-renewal of your subscription for an additional Renewal Term.
- No Early Termination; No Refunds
The subscription term in effect will end on the expiration date and you cannot cancel it before its expiration. We do not provide refunds if you decide to stop using the subscription during your subscription term.
- Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any portion or all of the Service ten (10) days after such notice. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If your Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Service.
- Termination for Cause
Either party will have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of Client’s failure to pay fees, which must be cured within ten (10) days after receipt of written notice from WinPatient. Pursuant to the payment policies outlined in Section 5 (Fees), you understand and agree that you will not be entitled to any refunds of amounts already paid to WinPatient unless you properly terminate the Agreement for cause per the terms of this Section.
- Effect of Termination
Upon the expiration or termination of this Agreement, Client’s rights to access and use the Service will terminate, provided that: (i) any and all payment obligations of Client under this Agreement outstanding as of the effective date of expiration or termination will survive; (ii) WinPatient shall return or destroy all PHI received from you, or created or received by us on your behalf (including any PHI in the possession of WinPatient’s subcontractors or agents), and otherwise comply with the termination provisions of the Business Associate Agreement; (iii) where returning or destroying the PHI is infeasible, WinPatient will provide notification to you of the conditions that make return or destruction infeasible, and upon mutual written agreement regarding such infeasibility, the protections of this Agreement and the Business Associate Agreement will continue to apply to such PHI to limit further uses and disclosures of such PHI for so long as the PHI must be maintained; and (iv) the following provisions will survive: Sections 2, 3, 4, 5, 6 vii., and 8-14.
- Hosting, Updates, and Privacy
You agree that WinPatient may, during and after the Term of this Agreement, include your name (including any applicable trade name, trademark, service mark or logo) on WinPatient’s client list, and in its marketing materials, sales presentations and any online directories that WinPatient may, from time to time, publish.
- Confidential Information
Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business or practice, plans, technology, and products (“Confidential Information”). Each party will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
- Confidentiality of Agreement
Each party agrees that the terms and conditions, but not the existence, of this Agreement will be treated as the other’s Confidential Information; provided, however, that each party may disclose the terms and conditions of this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by law; (iii) to legal counsel of the parties; (iv) in connection with the requirements of a public offering or securities filing; (v) in confidence, to its employees and agents and to its professional advisors such as accountants, banks and financing sources; (vi) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (vii) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
- WinPatient Indemnity
WinPatient will indemnify, defend and hold Client harmless from and against: (a) any third party claim brought against Client alleging that the Marketing Software or any WinPatient-provided Content infringes any third party intellectual property or proprietary right, including without limitation, patent, copyright or trademark; and (b) any liability, claim, action, loss, cost, damage or expense (including reasonable fees of attorneys and experts) incurred or suffered by Client, to the extent that such liability, claim, action, loss, cost, damage, expense or fees are attributable to or incurred as a result of an unauthorized use or disclosure of PHI by WinPatient or WinPatient’s breach of this Agreement; provided that (i) Client promptly notifies WinPatient in writing of such claim, (ii) provides assistance as reasonably requested by WinPatient to defend or settle such claim and (iii) gives WinPatient the exclusive authority to defend or settle such claim. WinPatient will not enter into any settlement that requires Client to admit liability or pay money without Client’s prior written approval, which will not be unreasonably withheld or delayed. WinPatient will have no liability or obligation under this Section 10 i. for any Content provided by Client.
- Client Indemnity
Client will indemnify, defend and hold WinPatient and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “WinPatient Indemnitees”) harmless from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of this Agreement or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including but not limited to any dispute arising from the sale, license, supply or provision of your goods or services. Client specifically agrees to indemnify the WinPatient Indemnitees as it relates to any claims against them related to the accessibility of the Provider Website to persons with disabilities, specifically those who are visually or hearing impaired. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
- Representations and Warranties; Disclaimer
- Mutual Representations and Warranties
Each party represents and warrants to the other that: (i) this Agreement has been duly entered into and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s entering into or performance of this Agreement; and (iii) the entering into and performance of this Agreement does not and will not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
EXCEPT AS EXPRESSLY SET FORTH ABOVE, WINPATIENT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AND WINPATIENT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WINPATIENT DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED.
- Limitation of Liability
WINPATIENT WILL NOT BE LIABLE TO THE CLIENT FOR ANY LOST PROFITS, COST OF COVER, LOSS OF DATA, INTERRUPTION OF BUSINESS OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF CLIENT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND (II) WINPATIENT’S TOTAL LIABILITY UNDER OR ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID TO WINPATIENT BY CLIENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
Except as provided in subsection ii. below, any and all disputes, controversies, or claims arising out of or relating to the Service, this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Los Angeles County, California. The arbitrator shall apply the laws of the State of California to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded as provided by the arbitrator.
Despite the provisions of this Section 13, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through an applicable federal, state, or local agency if that action is available; (c) seek emergency injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
- No Class Actions
EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and WinPatient agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the State or Federal Courts located in Los Angeles County, California. All other claims shall be arbitrated in accordance with this Section 13.
Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to correct promptly such failure or delay in performance. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California (except that body of law controlling conflicts of law). Neither party may assign this Agreement without the prior written consent of the other party, except that WinPatient may freely assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its business or assets without the prior consent of Client. Any attempted assignment or delegation in violation of the foregoing will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. WinPatient may, without your consent, subcontract to any party the performance of all or any of WinPatient’s obligations under this Agreement provided that WinPatient remains primarily liable for the performance of those obligations. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the applicable party as furnished in writing by either party hereto to the other. WinPatient’s address for notice is: WinPatient, Inc., 226 Cinnabar Lane, Yardley, PA 19067, Attn: General Counsel, and by email to: CFO@winpatient.com. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier. WinPatient and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between WinPatient and Client. Neither WinPatient nor Client will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. This Agreement, including all documents and terms incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. The parties agree to take such action to amend this Agreement from time to time as is necessary for compliance with the requirements of the Privacy Rule, the Security Rule, HIPAA, and the HITECH Act. Notwithstanding the foregoing, if the parties have not amended this Agreement to address a law or final regulation that becomes effective after the date that the parties enter into this Agreement and that is applicable to this Agreement, then upon the effective date of such law or regulation (or any portion thereof) this Agreement shall be amended automatically and shall incorporate such new or revised provisions as are necessary for this Agreement to be consistent with such law or regulations, and for both parties to be and remain in compliance with all applicable laws and regulations. Except as expressly provided in this Section 14, this Agreement may be amended only in writing executed by both parties. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. Except as expressly provided in subsection 13(iii), if any provision of this Agreement or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then such provision or portion thereof shall be modified or deleted in such manner as to render this Agreement as modified legal and enforceable to the maximum extent permitted under applicable laws. Any reference in this Agreement to a section of HIPAA, the Privacy Rule, the Security Rule, the HITECH Act, or any other regulations implementing HIPAA or the HITECH Act, shall mean such regulation or statute as in effect at the time of execution of this Agreement or, if and to the extent applicable, as subsequently updated, amended or revised.