PHYSICIAN INTELLIGENCE, LLC SUBSCRIPTION AGREEMENT
PHYSICIAN INTELLIGENCE, LLC SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ONGOING USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS IN THIS DOCUMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on June 20, 2017. It is effective between You and Us as of the date of You accepting this Agreement.
We grant You a non-exclusive, non-transferable license, without right of sub-license, to access and use the Services. You shall not, directly or indirectly: (1) create or enable the creation of derivative works, modifications, or adaptations of the Services; (2) decompile, reverse engineer or disassemble the Services; (3) distribute or disclose the Services to third parties; (4) remove or modify any copyright, trademark, patent or other proprietary marking or restrictive legends placed on/in the Services; (5) use any automatic device or program or manual process to monitor, copy or reproduce the Services; (6) modify the Services or interfere with the proper operation of the Services or the use of the Services by third parties; or (7) use the Services in violation of any applicable local, state, national or international law or regulation. The Services are Our proprietary property and all right, title and interest in the Services, including any and all intellectual property rights therein, remains at all times exclusively with Us and Our third party providers, if any.
2. PURCHASED SERVICES
2.1. Services Are Purchased As-Is. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2. User Subscriptions. Unless otherwise specified in the applicable Order Form: (1) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users; (2) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added; and (3) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared, transferred, or used by more than one User.
2.3 Services Provided. Unless otherwise provided in the relevant Order Forms, You are purchasing from us a Site License and Provider License for 12 months. The Site License is at a rate outlined in the online payment portal provided by Physician Intelligence, LLC.
We shall analyze your data within a reasonable time (generally within 72 hours of receiving your data) and shall provide an online portal for You to access our analysis of Your data.
3. USE OF THE SERVICES
3.1 Our Responsibilities. We shall use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or delays and failures by Internet service provider or hosting service provider. We shall use commercially reasonable efforts to provide the Purchased Services only in accordance with applicable laws and government regulations.
3.2. Your Responsibilities. You shall: (1) be responsible for compliance with this Agreement; (2) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, which shall include your Practice Management Billing Data, Accounts Payable Data, and Payroll Data; (3) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use; and (4) use the Services only in accordance with the applicable laws and government regulations. You shall not: (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
3.3 Your Additional Responsibilities Not to Send Patient Identifiable Data. YOU ACKNOWLEDGE THAT OUR SERVICES ARE NOT DESIGNED TO COMPLY WITH SECURITY REQUIREMENTS NECESSARY TO RECEIVE PATIENT IDENTIFIABLE DATA, AND YOU AGREE NOT TO SEND TO US ANY PATIENT IDENFIABLE DATA AS DEFINED BY FEDERAL, STATE, OR LOCAL LAW OR THIRD PARTY CONTRACT. WHETHER OR NOT PROHIBITED BY LAW OR OTHER AGREEMENT, YOU WILL NOT SEND ANY DATA CONTAINING ANY PATIENT NAME, SOCIAL SECURITY NUMBER, AND/OR ADDRESS, YOU ASSUME ALL LIABILITY FOR SENDING US SUCH DATA AND WILL INDEMNIFY US AGAINST ALL COSTS INCURRED AS A RESULT OF YOUR SENDING SUCH DATA, INCLUDING BUT NOT LIMITED TO CIVIL, CRIMINAL, OR ADMINISTRATIVE LIABILITY AND REASONABLE ATTORNEY’S FEES, EXPENSES, INTEREST, AND ANY APPLICABLE TORT AND PUNITIVE DAMAGES.
4. THIRD-PARTY PROVIDERS
4.1. Acquisition of Third-Party Products and Services. Any acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services. No purchase of third-party products or services is required to use the Services.
4.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. User Fees. You shall pay all fees specified in all Order Forms. Except as otherwise specified herein or in an Order Form: (1) fees are quoted and payable in United States dollars; (2) fees are based on services purchased and not actual usage; (3) payment obligations are non-cancelable and fees paid are non-refundable; and (4) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full month and the monthly periods remaining in the subscription term.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with the billing terms stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, we will invoice You in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 10 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion: (1) such charges may accrue late fee at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (2) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in this Agreement or the Order Form.
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 10 or more days overdue (or 5 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, or suspend Our services to You until such amounts are paid in full. You consent to jurisdiction in Pearland, Texas and agree to pay any reasonable attorney’s fees and expenses required to collect on Your unpaid account.
5.5. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We are determined to have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, We reserve all rights, title, and interest in and to the Services, including all intellectual property rights.
6.2. Restrictions. You shall not: (1) permit any third party to access the Services except as permitted herein or in an Order Form; (2) create derivate works based on the Services; (3) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; (4) reverse engineer the Services, or (5) access the Services in order to: (a) build a competitive product or service or (b) copy any features, functions or graphics of the Services.
6.3. Feedback. We shall have a royalty-free, worldwide, transferable, perpetual license to use or incorporate into the Services any suggestions, recommendations, or other feedback provided by You, including Users, relating to the operation of the Services.
7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data. Our Confidential Information shall include Our Services, the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes. However, Confidential Information (other than Your Data) shall not include any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (3) is received from a third party without breach of any obligation owed to the Disclosing Party, or (4) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (1) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (2) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Your Data. We shall not: (1) modify Your Data; (2) disclose Your Data except as compelled by law or as expressly permitted in writing by You; or (3) access Your Data except to provide Services or prevent or address service or technical problems or at Your request in connection with customer support matters.
However, we shall not be liable for any disclosures beyond our control, such as through theft, hacking, or acts of a third party, including, but not limited to, an Internet Service Provider or payment gateway provider. As noted, we do not certify compliance with federal, state, or local law or contractual provisions for Patient Specific Data.
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so. However, the Receiving Party agrees to immediately notify the Disclosing Party of any subpoena, discovery request, deposition notice, criminal or administrative investigation, or other legal process(es) by which such data is or is likely to be requested. The Receiving Party must object to the disclosure of such information, and provide the Disclosing Party with sufficient opportunity to intervene and seek a protective order unless the Disclosing Party expressly waives the opportunity to intervene. If the Disclosing Party fails to respond within seven business days of receipt of said notice, the Receiving Party may disclose such information in the most narrow manner required by law.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that We will perform the Services in a professional manner. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 11 below.
8.2. Mutual Warranties. Each party represents and warrants that: (1) it has the legal power to enter into this Agreement, and (2) it will not transmit to the other party any Malicious Code.
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.1 Indemnification by You. You shall indemnify Us against any claim made or brought against Us by a third party in relation to Your Use of our services. This shall include but not be limited to paying for any defense costs and damages awarded against Us in connection with any such Claim and paying any defense costs and/or civil, administrative, or criminal fines imposed upon us in connection with your Use of our services.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT SHALL OUR LIABILITY TO YOU, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY, EXCEED THE AMOUNT PAID FOR THE CURRENT SUBSCRIPTION, UP TO SIX MONTHS.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
11.3. Termination for Cause. A party may terminate this Agreement for cause: (1) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (2) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Surviving Provisions. If any provision is declared unenforceable, it shall be severed from this contract, and all other provisions shall remain in effect.
12. GOVERNING LAW AND JURISDICTION
12.1 General. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas, and the parties stipulate to resolve any disputes between them in Brazoria County, Texas, which shall serve as the venue for any litigation arising out of this Agreement.
12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (1) personal delivery, (2) upon delivery confirmation by return-receipt mail or courier service, (3) the first business day after sending by email (however, email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You. Notice by mail may be sent to us at: PHYSICIAN INTELLIGENCE, LLC, LLC, 11206 Sunlit Bay Drive, Pearland, TX 77584.
12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
12.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
13. GENERAL PROVISIONS
13.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing: (1) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports and (2) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
13.2. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6. Attorney’s Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of this Agreement.
13.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.