Last Updated: July 9, 2020
Please read these Terms of Service (this “Agreement”) carefully. By clicking “accept” to this Agreement, or downloading the mobile application or otherwise accessing or using the Services (as defined below), you (as the “User” under this Agreement) consent to be bound by this Agreement and affirm that you have the legal authority to enter into this Agreement.
Patient Orator, Inc. (“we” “our” or “Company”) provides a mobile application and a web-based platform to support patient care management, including specifically the application offered under the name “Patient Orator” (such mobile application (together with successor application(s), updates and upgrades thereto) as well as any materials and services available in connection therewith, including Company’s website, collectively, is referred to as the “Services”).
If you are a U.S. resident, this Agreement contains a mandatory arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.
1. CHANGES TO AGREEMENT. We may change this Agreement by notifying you of such changes by any reasonable means, including by posting a revised Agreement on the Services, and/or by sending to you a notice of the revised Agreement by email or as a notification of such change. Any changes to this Agreement will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating, or otherwise notified you, of such changes. Your clicking “accept” to this Agreement or your access to or use of the Services following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” date above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Services (including access to the Service via any third-party links); charge for, modify, or waive any fees required to use the Services; or offer opportunities to some or all Services Users. We reserve the right to introduce new features or functionality for which the payment of fees may be required.
2. User Accounts
2.1. Account Creation. In order to use some of the Services, you must register for an account (an “Account”). You will be required to provide certain information as prompted by the registration form on the Services. You represent that: (a) all required registration information is truthful and accurate, (b) you will maintain the accuracy of such information, and (c) that you are creating the account on your own behalf or on the behalf of another for which you have authorization to act.
2.2. Account Responsibilities. User is responsible for maintaining the confidentiality of all Account login credentials, and is fully responsible for all activities that occur under the Account. User agrees to immediately notify Company of any unauthorized use, or suspected unauthorized use of the Account or any other breach or suspected breach of security. Company cannot and will not be liable for any loss or damage arising from any authorized use of User’s Account or the failure to comply with the above requirements.
3. License TO USE the Services
3.1. License to User. Subject to the terms of this Agreement, Company grants User a non-transferable, non-exclusive, non-sublicensable, revocable license to access and use the Services for providing health care services or as a consumer of health care services. Upon termination of this Agreement, User’s license to use the applicable portion of, or all of the Services, will terminate immediately.
3.2. Certain Restrictions. The rights granted to User in this Agreement are subject to the following restrictions: (a) User may not license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit the Services; (b) User may not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) User may not access the Services in order to build a similar or competitive service; and (d) except as expressly stated on or enabled by the Services, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services will be subject to the terms of this Agreement. All copyright and other proprietary notices on any Services content must be retained on all copies thereof.
3.3. Modification, Suspension, or Discontinuance. Company reserves the right, at any time, to modify or discontinue the Services or any part thereof with or without notice. User agrees that Company will not be liable for any modification or suspension of Services or any part thereof. Prior to discontinuing any material portion of the Services, Company will use reasonable efforts to provide User with notification of such discontinuance.
3.4. Ownership. Excluding User’s User Content (defined below), User acknowledges that all the material and content available on or through the Services, including all intellectual property rights, including copyrights, patents, trademarks, and trade secrets in such material or content are owned by Company (or Company’s licensors), including all graphics, copy, music, videos, images, data, and the look and feel of the Services. The provision of the Services does not transfer to User or any third party any rights, title or interest in or to such intellectual property rights. Company (or its licensors) reserve all rights not granted in this Agreement.
3.5. Third-Party Materials. The Service may make available to you materials of third parties, including advertisements, and marketing material delivered to you as part of the Services (“Third-Party Materials”), or allow for the routing or transmission of such Third-Party Materials, including via links. By using such functionality, you are directing us to access, route, and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third-Party Materials, including the accuracy, integrity, quality, legality, usefulness, or safety of Third Party Materials, or any intellectual property rights therein. Certain Third-Party Materials may, among other things, be inaccurate, misleading, or deceptive. Nothing in this Agreement will be deemed to be a representation or warranty by Company with respect to any Third-Party Materials. We have no obligation to monitor Third-Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) through the Services at any time. In addition, the availability of any Third-Party Materials through the Services does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD-PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD-PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
3.6. Privacy and Security Laws. The Company will comply with all applicable federal and state laws regarding the privacy and security of personal and/or protected health information (“PHI”), including but not limited to 42 U.S.C. 1320d (“HIPAA”) and 42 U.S.C. 17902 (“HITECH”), their implementing regulations at 45 CFR Parts 160, 162 and 164 (collectively “Privacy and Security Laws”). To the extent required by the Privacy and Security Laws, User and Company will enter into a business associate agreement (“BAA”) related to Company’s provision of the Services under this Agreement. Any such BAA will be on a form approved by Company and User’s right to use the Services will be terminated for any failure of User to comply with the Privacy and Security Laws, including entering into a BAA on the form approved by Company.
4. User Content
4.1. User Content. “User Content” includes any and all information and content that User submits to, or uses with, the Services. User is solely responsible for its User Content. User assumes all risks associated with use of User’s User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of User’s User Content that makes User or any third party personally identifiable or improperly uses third party proprietary rights. User hereby represents that it has the authorization to consent to Company’s use of User’s User Content and that the User Content does not violate the Acceptable Use Policy (defined below). Because User alone is responsible for its User Content, User may expose itself to liability if, for example, the User Content violates the Acceptable Use Policy or any applicable privacy or intellectual property laws or agreements.
4.2. License. User hereby grants, and represents that it has the right to grant, to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, modify, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use User’s User Content, and to grant sublicenses of the foregoing, solely for the purposes of: (a) providing User with the Services; and (b) creating and using aggregated and anonymized data from User Content for any purpose. User agrees to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to its User Content.
4.4. Review of User Content. While Company is not responsible for any User Content, Company reserves the right (but has no obligation) to review any User Content, investigate, and/or take appropriate action against User in Company’s sole discretion (including removing or modifying User’s User Content, terminating this Agreement, and/or reporting User to law enforcement authorities) if User violates the Acceptable Use Policy or any other provision of this Agreement or otherwise create potential liability for us or any other person.
4.5. Feedback. If User provides Company any feedback or suggestions regarding the Services (“Feedback”), User hereby assigns to Company all rights in the Feedback and agrees that Company will have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback as non-confidential and non-proprietary. User agrees not to submit as Feedback any information or ideas that User considers to be confidential or proprietary.
5. Acceptable Use Policy. The following Section 5 sets forth Company’s “Acceptable Use Policy.”
5.1 Unlawful or Harmful Use. User agrees not to use the Services in any manner or post or upload any User Content:
(a) that violates 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;
(b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or
(c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
5.2 Improper Purposes. In addition, User agrees not to use the Services to:
(a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data;
(b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise;
(c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent;
(d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services or violate the regulations, policies or procedures of such networks;
(e) attempt to gain unauthorized access to the Services, other computer systems or networks connected to or used together with the Services, through password mining or other means;
(f) harass or interfere with another user’s use and enjoyment of the Services; or
(g) introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services.
6. Indemnity. User agrees to indemnify and hold Company (and its officers, directors, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party related to or arising out of: (a) User’s use of the Services; (b) User’s User Content; (c) User’s violation of this Agreement; or (d) User’s violation of applicable laws or regulations (including any laws related to the collection of personally identifiable or protected health information). Company reserves the right, at User’s expense, to assume the exclusive defense and control of any matter for which User is required to indemnify Company (or its officers, directors, employees, and agents) and User agrees to cooperate with Company’s defense of these claims. User agrees not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify User of any such claim, action or proceeding upon becoming aware of it.
7. MEDICAL DISCLAIMERS. THE SERVICES DO NOT PROVIDE MEDICAL ADVICE. IF YOU BELIEVE YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. DO NOT RELY ON THE SERVICES FOR IMMEDIATE, URGENT MEDICAL NEEDS. THE CONTENT AND FUNCTIONALITY OF THESE SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO CONSTITUTE PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.
8. WARRANTY DISCLAIMERS. THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” COMPANY EXPRESSLY DISCLAIMS (A) ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. COMPANY MAKES NO WARRANTY THAT THE SERVICES: (A) WILL MEET USER’S REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY BE LIABLE TO USER, OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR USER’S USE OF, OR INABILITY TO USE, THE SERVICES, LOST USER CONTENT, OR DATA RECOVERY COSTS. SUCH LIMITATIONS APPLY EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ACCESS TO, AND USE OF, THE SERVICES ARE AT USER’S OWN DISCRETION AND RISK, AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO USER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) ONE HUNDRED US DOLLARS ($100) OR (B) AMOUNTS USER PAID COMPANY IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO USER AND USER MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
10. Term and Termination. This Agreement will remain in full force and effect while User uses the Services. Company may suspend User’s rights to use the Services and/or terminate this Agreement immediately upon User’s breach of this Agreement. Upon termination of this Agreement, User’s right to access and use the Services will terminate immediately. User understands that any termination of User’s use might involve deletion of all User Content. Company will not have any liability whatsoever for deletion of User Content upon any termination of this Agreement. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3.4 – 12.
11. Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS USER’S RIGHTS.
11.1. Mandatory Arbitration. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between User and Company and/or Company’s employees, agents, successors, or assigns, regarding or relating to the Services or this Agreement, will exclusively be settled through binding and confidential arbitration.
11.2. Rule of Arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS, as mutually determined by the parties (if the parties are unable to mutually agree on AAA or JAMS, Company will have sole authority to choose either AAA or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration or, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, User may visit the AAA website at: http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, User may visit the JAMS website at: http://www.jamsadr.com.
User is GIVING UP USER’S RIGHT TO GO TO COURT to assert or defend User’s rights EXCEPT for matters that may be taken to small claims court. User’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. User is entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
The parties must abide by the following rules: (1) ANY CLAIMS BROUGHT BY EITHER PARTY MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that User is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Company will pay as much of User’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (4) Company also reserves the right in Company’s sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator will honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award will be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
11.3. Exception. Notwithstanding the foregoing, either of the parties may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in Kings County, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Kings County, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Kings County, New York for such purpose. A request for interim measures will not be deemed a waiver of the right to arbitrate.
11.4. Severability. With the exception of subparts (1) and (2) in the paragraph 11.2 above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Agreement, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 11.2 (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither of the parties will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in Kings County, New York.
11.5. Termination. Notwithstanding any provision in this Agreement to the contrary, if Company seeks to terminate the Dispute Resolution section as included in the Agreement, any such termination will not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to the Services, and will not be effective as to any claim of which User provided Company with written notice prior to the date of termination.
11.6. Governing Law. Any and all controversies, disputes, demands, counts, claims, or causes of action between User and Company’s employees, agents, successors, or assigns, regarding or relating to the Services or this Agreement, will be exclusively be governed by the internal laws of the State of New York, without regard to its choice of law rules and without regard to conflicts of laws principles, except that the arbitration provision will be governed by the Federal Arbitration Act.
12.2. Entire Agreement. This Agreement constitutes the entire agreement between User and Company regarding the use of the Services. Company’s failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Company is an independent contractor and service provider to User, and neither party is an agent or partner of the other.
12.3. Assignment. This Agreement, and User’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by User without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon assignees. Notwithstanding the foregoing, Company may assign this Agreement without the other party’s prior written consent as part of a merger, or a sale or transfer of all or substantially all of its assets, or any business division covering substantially all of the Services. This Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their respective and permitted assignees.
12.4. Electronic Communications. The communications between User and Company use electronic means, including email. For contractual purposes, User: (a) consents to receive communications from Company in electronic form and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to User electronically satisfies any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect User’s non-waivable rights.
12.5. Contact Information. Notices to Company may be sent to: email@example.com.