1. GENERAL
A. Overview. During the Term (as hereinafter defined) of this Agreement, Customer wishes to use, and RISARC agrees to furnish, the Services to develop, configure and manage a service that provides authorized users (each a “User”) with access to certain electronic health data and with the ability to communicate with other Users. To enable RISARC to perform these tasks, Customer agrees that it will have and fulfill the responsibilities set forth in this Agreement.
B. Content. As further described in the applicable Agreement, Customer shall deliver to RISARC materials as specified in the applicable Agreement (collectively, the “Content”). “Content” also includes information and data entered by Customer or its Users. Subject to the terms of this Agreement, Customer hereby grants to RISARC a non-exclusive, nontransferable license to use the Content to perform RISARC’s obligations under this Agreement and for RISARC’s business purposes related to RISARC’ RMSe-bubble Services.
C. Use of RMSe-bubble Services. With the Content, RISARC will perform the Services, as described in the Agreement. RISARC hereby grants to Customer a limited, nonexclusive, nontransferable right to use the RMSe-bubble Services as configured and described in the services description.
D. Scope of Use Limitations. Customer’s right to use RMSe-bubble Services shall be restricted as provided in this Agreement.
E. User Registration. Customer’s Users of RMSe-bubble Services shall be subject to the RISARC RMSe-bubble Terms of Service and Privacy Statement, which may be amended by RISARC from time to time in its sole discretion. Both RISARC and Customer agree to protect and use any information provided by individuals to the RMSe-bubble Service only in a manner consistent with such Terms of Service and Privacy Statement. Customer (or the applicable User) shall establish user identification(s) and password(s) (“Userid and Password”) to permit use of the non-public functions of RMSe-bubble Services in accordance with this Agreement.
2. SERVICES
A. Customer Facilities. Customer shall be responsible for maintaining all computer hardware, software and Internet connections (public or private) required to access the RMSe-bubble Services.
B. Security and Data Protection. RISARC will comply with the requirements of the Health Insurance Portability and Accountability Act (“HIPAA”), including using reasonable efforts to implement security measures to protect the confidentiality of the information transmitted. However, except as determined by the Secretary of the US Department of Health and Human Services (“HHS”) as part of an enforcement action authorized under HIPAA, RISARC shall not be liable for any damages resulting from any unauthorized access, theft of information or data or other security breach with respect to the Content or RMSe-bubble Services and the information or data contained therein.
C. Application / Data Management. As part of the Services, RISARC may update the RMSe-bubble Services for all customers from time to time. Customer will also use reasonable efforts to keep the Content current and updated.
D. User id and Password. The RMSe-bubble Services allows Customer and Customer-authorized Users to update and maintain information or data stored thereon. RISARC may accept as authentic and accurate (and act upon without liability) any information or data that is accompanied by the appropriate user id and password (without further investigation of the source of the information). However, RISARC may delay the implementation of any transmitted information or data if it detects or suspects fraud or unauthorized access. Customer shall be responsible for any errors or inaccuracies in the information or data transmitted to RISARC.
E. No Endorsement. RISARC does not endorse or recommend any of the Content of Customer or other third parties that may be offered in connection with RMSe-bubble Services from time to time. RISARC shall not be liable for any supplier or other third party advertising, offer, information, data, content or link of any nature or for any content, information, data, or services that Customer obtains as a result thereof. All links within the RMSe-bubble Services are provided solely for the convenience of Users and do not constitute RISARC’s sponsorship.
F. Force Majeure. Neither Party to this Agreement shall be responsible for delays in performance, failures to perform or losses, including payment, resulting from any reason or cause beyond its control.
G. Taxes. Unless Customer provides RISARC a tax or other levy exemption certificate acceptable to the taxing or levying authorities, Customer shall reimburse RISARC for any sales, use or other taxes relating to this Agreement or Customer’s rights hereunder (excluding taxes on RISARC’s net income).
H. Late Payment. If Customer does not pay any invoice based on payment terms, RISARC may cancel this Agreement immediately without further notice. Customer shall reimburse RISARC for any attorney’s fees or other costs incurred in collecting unpaid fees and charges under this Agreement.
3. PROPRIETARY RIGHTS
A. Ownership. The copyrights, patent rights, trade secrets, trademarks and all other intellectual property rights in and to (i) the Content as provided by Customer in its original, unaltered form, is and shall be the exclusive property of Customer; and (ii) the RMSe-bubble Services and any other products of the Services (including, but not limited to, documentation and computer programming relating directly or indirectly to the Services), but excluding the Content as provided by Customer to RISARC in its original, unaltered form, are and shall be the exclusive property of RISARC and/or third parties who have licensed such rights to RISARC. This Agreement does not transfer to Customer, and Customer shall not obtain hereunder, any title, copyright or intellectual property rights in and to the RMSe-bubble Services or the Services, or any copies thereof. Customer shall not copy the RMSe-bubble Services or the Services (except for the Content) in whole or in part.
B. No Reverse Engineering. Customer shall not reverse engineer, decompile, disassemble or extract (as applicable), or create any derivative work or product based on or derived from any ideas, algorithms or procedures from the RMSe-bubble Services or any related documentation.
C. Trademarks. During the Term of this Agreement, each party is authorized to use the name of the other party and trademarks, trade names and logos delivered by the other party (the “Marks”) expressly for use in connection with the RMSe-bubble Services, solely in connection with (i) RISARC’s development and operation of the RMSe-bubble Services and (ii) each party’s promotion of the RMSe-bubble Services. In addition, Customer acknowledges that the RMSe-bubble Services may include RISARC’s Marks. Any use of the Marks hereunder shall be subject to prior review by the owner of such Marks, must comply with the trademark usage guidelines of the owner and all use of the other party’s Marks will inure to the benefit of the respective owner of the Marks. Nothing contained in this Agreement will give either party any right, title or interest in or to any Marks of the other party.
D. Nondisclosure. Any communication written, electronic or verbal, transactional information, data, material, pricing, terms and conditions offered herein or during the performance of this Agreement is confidential and neither Party shall disclose any of the above said information to any third party except as expressly permitted herein, required by law, or upon receipt of written authorization from the other Party, which shall not be unreasonably withheld. The confidentiality requirement under this Agreement shall include the prohibition of disclosure to any consultant, company or individual (excluding attorneys, accountant and temporary employees hired by MHS whose position requires access to this information) not required to receive such confidential information in order to carry out the performance of services provided in this Agreement. In the event that RISARC desires to disclose confidential information, as related to this Agreement to any excluded Third Party for any reason, RISARC agrees to secure a Non-Disclosure Agreement supplied by Customer and executed by such excluded Third Party prior to the disclosure of such confidential information.
The RMSe-bubble Services and this Agreement and all trade secrets, know-how and information of RISARC contained therein and any related research, designs, ideas, concepts and technology embodied therein are deemed to be confidential information of RISARC (“Confidential Information”). This Confidential Information will remain the property of RISARC and Customer will not be deemed by virtue of this Agreement or any access to this Confidential Information to have acquired any right or interest in or to any such Confidential Information. Customer agrees: (i) to hold the Confidential Information in strict confidence; (ii) to limit disclosure of the Confidential Information to Customer’s own employees and agents having a reasonable need to know for the purposes of this Agreement; (iii) to notify RISARC promptly of any unauthorized use or disclosure of the Confidential Information; and (iv) to cooperate with RISARC in every reasonable way to stop any unauthorized use or disclosure of the Confidential Information. Customer agrees that if a court of competent jurisdiction determines that Customer has breached or has threatened to breach its obligations in this Section 3, RISARC will be entitled to obtain appropriate injunctive relief and other measures restraining further breach or threatened breach of such obligations. Such relief shall be in addition to, and not in lieu of, any other rights and remedies available to RISARC.
E. HIPAA and Individually Identifiable Health Information. RISARC shall upon the written request of the Secretary of Health and Human Services or the Comptroller General or any duly authorized representatives make available the contract documents necessary to verify the services provided under this agreement. Such inspection shall be available up to 4 years after the rendering of such services. If RISARC carries out any of this agreement through a subcontractor with a value of $10, 000.00 or more over a 12-month period with a related individual or organization, RISARC agrees to include this requirement in any such subcontract(s). This section is included pursuant to public law 96-499, Sec. 952 (Sec. 1861 (v) (1) of the Social Security Act.) No attorney-client, accountant-client, or other legal privilege will be deemed to have been waived by Customer or RISARC by virtue of this Agreement.
F. Covered Information. This section shall govern the use and/or disclosure of all individually identifiable health information that RISARC has obtained from or created on behalf of Customer (“Covered Information”). The terms use, disclosure, and individually identifiable health information shall have the same meaning as set forth in the U.S. Department of Health and Human Services (“D.H.H.S.”) Standards for Privacy of Individually Identifiable Health Information Final Rule, codified at 45 C.F.R., Parts 160 and 164 (“HIPPA Privacy Standards”), as it may be amended from time to time.
G. Permitted Uses. RISARC shall keep confidential and shall not use or disclose Covered Information except as expressly permitted by this section. RISARC shall use or disclose Covered Information for the following purposes only: (1) For services as selected by Customer, and specified in the Agreement; (2) For the proper management and administration of RISARC; and (3) To carry out the legal responsibilities of RISARC. RISARC shall not disclose Covered Information unless the disclosure is required by law, or RISARC has obtained written reasonable assurances from the person to whom the Covered Information will be disclosed. The written reasonable assurances must meet the criteria set forth in the applicable federal regulations, including a requirement that the recipient must notify RISARC if it becomes aware of a violation of the written reasonable assurances.
H. Privacy Policy. RISARC shall comply with the RMSe-bubble Privacy Policy posted on www.risarc.com.
I. Acceptable Use. Customer is responsible for continual compliance with RISARC’s Privacy Policy and shall maintain the security of the RMSe-bubble Services in accordance with this Agreement, the RISARC Privacy Policy and Terms of Use and other guidelines released by RISARC from time to time. Customer shall not, and will not permit others, including its Users, to engage in activities prohibited by RISARC including and without limitation: (a) intentionally accessing data not intended for Customer’s use, (b) logging into an account for which Customer is not authorized, (c) attempting to probe, scan, or test the vulnerability of RMSe-bubble Services, (d) attempting to breach security or authentication measures without proper authorization or interfere with RMSe-bubble Services, (e) taking any action in order to obtain RMSe-bubble Services to which Customer in not entitled or (f) using RMSe-bubble Services to create, transmit, distribute or store material that: (i) violates the Intellectual Property Rights of third parties, (ii) violates the privacy, publicity, or other personal rights of third parties, (iii) impairs the privacy of communications, or (iv) assists or permits any persons in engaging in any of the activities described above.
4. WARRANTY AND REMEDIES FOR BREACH OF WARRANTY
A. Limited Warranty. RISARC will use reasonable professional care in developing and maintaining the RMSe-bubble Services, and will use reasonable efforts to provide continuous availability of the RMSe-bubble Services, subject to periodic unavailability due to maintenance of the server(s), the installation or testing of software, the loading of additions or modifications to the RMSe-bubble Services and subject to Sections 2.F and 0. RISARC’s sole obligation and Customer’s exclusive remedy with respect to any unavailability or error in the RMSe-bubble Services that is reported to RISARC is for RISARC to use reasonable efforts to correct the RMSe-bubble Services or re-perform promptly any Services affected by such unavailability or error.
B. Content and Conduct. Customer warrants that (i) the Content does not and will not contain unlawful, discriminatory, libelous, harmful, obscene or otherwise objectionable material of any kind and does not and will not violate any right of privacy or publicity and (ii) the Content and the use by Customer of the Services will not violate any rights of privacy (including, without limitation, the Privacy Statement) or encourage conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international laws, codes, ordinances or regulations. Customer warrants and represents that Customer will not knowingly propagate computer worms, disabling codes or viruses or use the Services to make unauthorized entry into any other computer or machine.
C. Noninfringement. Each party warrants that the data and other material furnished to the other party do not, to its knowledge, infringe any third party copyrights, patents or trade secrets that exist on the Effective Date and that arise or are enforceable under the laws of the United States of America. If a third party brings an action against either party making allegations that, if true, would constitute a breach of this warranty, then the other party will, at its own expense, settle the claim or defend the first party in such proceeding and Indemnitor will pay all settlements, costs, damages and reasonable legal fees and expenses finally awarded; provided, however, such first party:
(i) promptly notifies Indemnitor in writing of the proceeding;
(ii) promptly provides the other party with a copy of all information received by the first party with respect to the proceeding;
(iii) cooperates with the other party in defending or settling the proceeding; and
(iv) allows Indemnitor to control the defense and settlement of the proceeding, including the selection of attorneys. The first party may observe the proceeding and confer with the other party at its own expense.
D. Warranty Exclusions. RISARC is not responsible for any claimed breaches of the foregoing caused by:
(i) the RMSe-bubble Services delays due to Customer network failures or communications difficulties of any kind;
(ii) Customer’s (or any Customer-authorized User’s) modifications to its information or data stored in the RMSe-bubble Services; or
(iii) the combination, operation or use of the RMSe-bubble Services or any related documentation with any items that RISARC did not supply to Customer.
A. Responsibility for Results. RISARC does not warrant that the RMSe-bubble Services or documentation will be error-free, that the RMSe-bubble Service’s operation will be uninterrupted or that the RMSe-bubble Services will satisfy Customer's requirements. As between RISARC and Customer, Customer shall be responsible for the results obtained from use of the RMSe-bubble Services, including (without limitation) the completeness, accuracy and content of such results.
B. THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) THE IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
5. LIMITATION OF LIABILITY
A. Limitation of Liability. Notwithstanding anything herein to the contrary, if Customer or anyone claiming under or through Customer should make any claim against RISARC, its directors, officers, employees, agents, representatives, licensors or suppliers (collectively, the “RISARC Persons”) arising out of, resulting from or in any way connected with this Agreement (including, without limitation, for breach of contract, breach of warranty, breach of any indemnity or any tort claim), the RISARC Persons will be liable only for actual direct damages caused by the RISARC Persons not to exceed (in the aggregate for all claims) the amount that Customer paid RISARC for the Services in the preceding twelve (12) months. In addition, in no event will the RISARC Persons’ aggregate liability for all claims arising under or relating to this Agreement exceed the total amount paid to RISARC by Customer hereunder during the preceding twelve (12) months.
B. No Consequential Damages. In no event will the RISARC Persons be liable for: (i) any damages caused by Customer (including any Customer-authorized User) or third parties; (ii) any claims of third parties; or (iii) any lost profits or revenues, loss of business, loss of use, loss of data, lost savings or any consequential, special, incidental, indirect, exemplary or punitive damages, even if RISARC or the RISARC Persons have been advised of the possibility of such damages.
6. INDEMNIFICATION
A. Each party (hereafter, the “Indemnifying party”) shall indemnify, defend and hold harmless the other party and its affiliates (their directors, officers, employees, agents and representatives) from and against any losses which are incurred, caused or arise from any gross negligence, fraud or willful misconduct of the Indemnifying Party or its employees, officers, directors or agents. In addition, Customer shall indemnify, defend and hold harmless the RISARC Persons from and against any losses which are incurred, caused or arise from the conduct of Customer’s business or that arise out of a breach of Section 0. For purposes of this Section, “losses” shall mean any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including, without limitation, interest that may be imposed in connection therewith, costs and expenses of investigation, and reasonable fees and disbursements of counsel and other experts) incurred by either party to this Agreement as a result of claims asserted by a third party.
B. A party claiming indemnification shall promptly give the other party written notice of any claim to which it claims such indemnity applies. The indemnifying party shall have the right to control the defense and settlement with respect to any such claim. The indemnifying party shall not, without indemnified party’s consent, enter into any settlement unless such settlement includes a general release of the indemnified party with no admission or finding of fault by the indemnified party. The indemnified party shall, at indemnifying party’s expense, cooperate fully with the indemnifying party in the defense. An indemnified party may participate at its expense in the defense of the claim, subject to the indemnifying party’s right to control the defense.
7. TERM AND TERMINATION
A. Termination for Cause. either party may terminate this Agreement for any reason upon thirty (30) days written notice to the other party Notwithstanding the foregoing, if Customer breaches its obligations under Sections 1 or 3 hereunder, RISARC will have the right to terminate this Agreement (or any Service Description hereunder) immediately upon written notice to Customer. Termination of this Agreement (or any Service Description hereunder) will be in addition to, and not in lieu of, other remedies available to the terminating party under this Agreement. Upon any such termination, Customer shall immediately discontinue all use of the RMSe-bubble service.
B. Survival. Any provision of this Agreement that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Agreement.
8. LAW AND DISPUTES
A. Choice of Law. This Agreement will be governed by the laws of the State of California, without regard to any provision of California law that would require or permit the application of the substantive law of any other jurisdiction. The parties acknowledge and agree that the exclusive forum for disputes arising under this Agreement shall be an appropriate federal or state court in California, and Customer hereby submits to the personal jurisdiction thereof.
B. Attorneys Fees. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to recover all costs of the suit and reasonable attorney’s fees as determined by a court of competent jurisdiction.
C. Limitation of Actions. No proceeding, regardless of form, arising out of or related to this Agreement may be brought by either party more than two (2) years after the accrual of the cause of action, except that (i) proceedings related to violation of a party’s proprietary rights or any duty to protect Confidential Information may be brought at any time within the applicable statute of limitations, and (ii) proceedings for non-payment may be brought up to two (2) years after the date the last payment was due.
9. GENERAL
A. Notices. Any notice or other communication required or permitted to be made or given by either party pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly given: (i) two (2) business days after the date of mailing, if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted, if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this section; or (iii) when delivered, if sent by recognized express courier service. All notices will be sent to the other party at its address set forth on the first page of this Agreement (or at such other address as such party will have specified in a notice given in accordance with this section). If to RISARC, to the attention of the RISARC contact shown on the first page of this Agreement. If to Customer, to the attention of the Customer contact shown on the first page of this Agreement.
B. Assignment. Customer may not assign or otherwise transfer any right or obligation set forth in this Agreement. Any purported assignment in violation of the preceding sentence will be void and of no effect. This Agreement will be binding upon the parties’ respective successors and permitted assigns.
C. Severability. The provisions of this Agreement will be deemed severable, and the invalidity or unenforceability of any one or more provisions will not affect the validity or enforceability of any other provisions. In addition, if any provision of this Agreement is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible in accordance with applicable law, preserves the original intentions and economic positions of the parties.
D. No Waiver. No failure or delay by either party in exercising any right, power or remedy hereunder will operate as a waiver of such right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party. If either party waives any right, power or remedy, such waiver will not waive any successive or other right, power or remedy the party may have under this Agreement.
E. Relationship. Each of the parties’ performance under this Agreement shall be as an independent contractor, not as an agent or employee, of the other party. Nothing contained in this document shall create an agency relationship. Neither party shall have the authority to act on behalf of the other party or bind the other party, directly or indirectly.
F. Counterparts. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single agreement between the parties.
G. Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
H. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Agreement. This Agreement does not amend, modify, supercede or derogate from any other agreement between the parties. This Agreement may be modified or amended solely in a writing signed by both parties. RMSe-bubble Terms of Service
TERMS OF SERVICE
The RMSe-bubble service allows authorized users (each a “User”) to have access to certain electronic health data including medical records and to communicate with other authorized users.
By accessing or using the RMSe-bubble service, You acknowledge and agree to comply with the terms and conditions of this Terms of Service (“TOS”) including RISARC Consulting, LLC's Privacy Policy.
References in this TOS to “we” or “our” shall mean RISARC Consulting, LLC; references to “User,” shall mean a user of the RMSe-bubble service; and references to “You” or “Your” shall mean you.
1. GENERAL
A. You may not access the RMSe-bubble service or any information provided through the RMSe-bubble service if You have not been provided with a user id and password by an entity authorized to grant access to the RMSe-bubble service.
B. If You are an employee of an entity that provides access to confidential medical information via the RMSe-bubble service, You agree to comply with all relevant policies and procedures of Your employer with regard to the access and use of such information.
C. If You are not an employee of an entity that provides access to confidential medical information via the RMSe-bubble service, You agree that You or Your employer has executed such entity’s HIPAA Business Associate Agreement and that You will comply with all the terms of such Business Associate Agreement.
D. You agree NOT TO SHARE Your password with anyone. You are solely responsible for protecting Your password.
E. You agree that RMSe-bubble is a communication service offered as a convenience to authorized Users. You understand that it provides You with online access to certain electronic medical records and that You are solely responsible for Your use of such information and any such information that You intentionally or unintentionally communicate to others.
F. You understand that posting of information on RMSe-bubble is strictly at the discretion of the entity providing such information.
G. You agree to comply with the laws and relevant regulations of the United States of America with regard to the handling and use of any information accessed via the RMSe-bubble service.
H. If You are located outside of the United States of America, You also agree to comply with the laws and relevant regulations of the country, state or territory in which You are located, to the extent such laws and regulations are more stringent than the laws and regulations of the United States of America with regard to the handling and use of any information accessed by You via the RMSe-bubble service.
I. You acknowledge, consent and agree that RISARC Consulting, LLC may access, preserve and disclose Your account information, including records regarding Your use of the RMSe-bubble service and records of content submitted or accessed by You, if requested to do so by the entity that provided Your user id and password or if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any content violates the rights of third parties; (d) respond to User requests for customer service; or (e) protect the rights, property or personal safety of RISARC Consulting, LLC, its users and the public.
J. You agree to not use the RMSe-bubble Service to:
1. upload, post, email, transmit or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
2. harm minors in any way;
3. impersonate any person or entity, including, but not limited to a RISARC Consulting, LLC official, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
4. upload, post, email, transmit or otherwise make available any content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements or confidential medical information);
5. upload, post, email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
6. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
7. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
8. interfere with or disrupt the RMSe-bubble service or servers or networks connected to the RMSe-bubble service, or disobey any requirements, procedures, policies or regulations of networks connected to the RMSe-bubble service; or
9. intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations having the force of law.
2. SECURITY
A. While we use commercially reasonable security, no system can perfectly guard against risks of intentional intrusion or inadvertent disclosure of information. When using the RMSe-bubble service, information will be transmitted over a medium that is beyond the control of RISARC Consulting, LLC and its contractors. USER HEREBY EXPRESSLY ASSUME THE SOLE RISK OF ANY UNAUTHORIZED DISCLOSURE OR INTENTIONAL INTRUSION, OR OF ANY DELAY, FAILURE, INTERRUPTION OR CORRUPTION OF DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH THE USE OF THIS SERVICE
B. You will be provided a user id and password by the entity granting Your access to its information via the RMSe-bubble service. It is extremely important that You keep Your user id and password in a secure location and completely confidential. Anyone with access to Your user id and password will be able to view the confidential medical information that You are authorized to access and communicate with other Users as if that person were You. It is Your responsibility to prevent disclosure of Your password and to notify RISARC Consulting, LLC, and the entity that provided Your password immediately if You feel that Your security has been compromised.
3. CONFIDENTIALITY All electronic health data and medical record content stored on the RMSe-bubble service is subject to all California and United States of America statutes governing the security and confidentiality of medical records.
4. DISCONTINUING USE OF RMSE-BUBBLE You may discontinue use of the RMSe-bubble service at anytime by sending a message via the RMSe-bubble service requesting this change to the entity(ies) that granted Your access to the RMSe-bubble service. RISARC Consulting, LLC, is not responsible for cancelling Your use of the RMSe-bubble service.
5. SUSPENSION OR TERMINATION OF ACCESS If we reasonably believe that a User has violated this TOS and/or abused the use of this service, we reserve the right, at our sole discretion, to suspend or discontinue such User’s access to and use of this service. Such User will be notified if access to the RMSe-bubble service is suspended or discontinued by RISARC Consulting, LLC. Such User’s access will only be reinstated upon request to us from the entity that provided such User’s user id and password. We reserve the right to refuse such request in our sole discretion.
6. COPYRIGHT AND TRADEMARKS All content included on or access through the RMSe-bubble service, including, but not limited to, text, photographs, graphics, button icons, images, artwork, names, logos, trademarks, service marks and data (the "Content"), in any form including the compilation thereof, are protected by U.S. and international copyright law and conventions.
7. SITE ACCESS AND LICENSES RISARC Consulting, LLC, grants a limited license to each User to make personal use only of the RMSe-bubble service in accordance with these terms and conditions of use. This license expressly excludes, without limitation, any reproduction, duplication, sale, resale or other commercial use of the RMSe-bubble service, making any derivative of the associated services, the collection and use of user email addresses or other user information, including, without limitation, health information or any data extraction or data mining whatsoever.
8. LINKS TO THIRD PARTY SITES RMSe-bubble service may contain links to websites operated by other parties. The links are provided for User convenience only. RISARC Consulting, LLC does not control such websites and RISARC Consulting, LLC is not responsible for the content and performance of these sites. The inclusion of links to other websites does not imply any endorsement of the material on the websites or any association with their operators. RISARC Consulting, LLC does not operate, control or endorse any information, products or services provided by third parties through the internet. Use of other sites is strictly at Your own risk including, but not limited to, any risks associated with destructive viruses. You are responsible for viewing and abiding by the terms and conditions of use and the privacy statements of the other websites.
9. NO WARRANTIES The RMSe-bubble service, this site and all other sites hosted by RISARC Consulting, LLC and the content contained herein and therein are provided by RISARC Consulting, LLC on an "AS IS" basis, and RISARC CONSULTING, LLC MAKES NO REPRESENTATION OR WARRANTY WITH REGARD TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ACCESSED VIA THE RMSe-bubble SERVICE. RISARC CONSULTING, LLC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED AS TO THE OPERATION OF THE RMSe-bubble SERVICE OR RISARC CONSULTING, LLC’S SITES, OR THE CONTENT, PRODUCTS AND/OR SERVICES INCLUDED THEREIN. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, RISARC CONSULTING, LLC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR INFRINGEMENT.
10. LIMITATION OF LIABILITY Some of the material accessible via the RMSe-bubble service is provided by third parties and RISARC Consulting, LLC shall not be held responsible for any such third-party material. RISARC Consulting, LLC disclaims any responsibility for or liability related to such third-party material. Any questions, complaints or claims should be directed to the appropriate third party. UNDER NO CIRCUMSTANCES WILL RISARC CONSULTING, LLC BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE RMSe-bubble SERVICE.
11. INDEMNITY You agree to indemnify and hold RISARC Consulting, LLC and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of content You submit, post, transmit or otherwise make available through the RMSe-bubble Service, Your use of the RMSe-bubble Service, Your connection to the RMSe-bubble Service, Your violation of the TOS, or Your violation of any rights of another.
12. MODIFICATION AND NOTIFICATION OF CHANGES.
A. We reserve the right to make changes to the Site, related policies and agreements, this TOS and the Privacy Policy at any time. If We make a material modification to this TOS, We will notify You by:
1. sending an e-mail to the address associated with Your account. We are not responsible for your failure to receive an email due to the actions of Your ISP or any e-mail filtering service; therefore, You should add risarconline.com to the list of domains approved to send you e-mail (commonly known as your “whitelist”). If we receive notice that an e-mail notice to You has been rejected for any reason, We will use commercially reasonable efforts to resend the message, and if it remains undeliverable, We will send a printed version of the notice to the street address You provided us, if any; and
2. displaying a prominent announcement above the text of this TOS or the Privacy Policy, as appropriate, for thirty (30) days,
3. with (1) and (2) being deemed sufficient notification, of such changes.
B. After notice of a modification to the TOS or the Privacy Policy has been posted for 30 days, the notice will be removed and a brief description of the modification and the date that it went into effect will be placed in the Historical Modifications section at the end of the TOS and Privacy Policy. If You have not used the Site for more than 30 days, You should check these two sections for any modifications to the TOS or Privacy Policy prior to any further use of the Site. Should You wish to terminate Your account due to a modification to the TOS or the Privacy Policy, You may do so by sending an email with the subject line “Termination” to the following email address: support@risarconline.com. If You choose to continue using the Site, You agree that by doing so You will be deemed to accept the new TOS or Privacy Policy, as relevant.
13. MISCELLANEOUS
A. Governing Law and Jurisdiction By using the RMSe-bubble service, You agree that the laws of the state of California, without regard to its conflict of laws provisions, will govern this TOS and any dispute that might arise between You and RISARC Consulting, LLC. You expressly agree that exclusive jurisdiction for any dispute with RISARC Consulting, LLC, its affiliates, employees, contractors, officers and directors, resides in the appropriate state or federal court in California and You further agree and expressly consent to the exercise of personal jurisdiction thereof in connection with any claim involving RISARC Consulting, LLC, its affiliates, employees, subsidiaries, contractors, officers and directors. Use of the RMSe-bubble service is unauthorized in any jurisdiction that does not give effect to the terms and conditions set forth herein.
B. Entire Agreement The TOS and the Privacy Policy constitutes the entire agreement between You and RISARC Consulting, LLC and governs Your use of the RMSe-bubble service, superseding any prior agreements between You and RISARC Consulting, LLC with respect to the RMSe-bubble service.
C. Waiver and Severability of Terms The failure of RISARC Consulting, LLC to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
D. No Right of Survivorship and Non-Transferability You agree that Your RMSe-bubble user id and password are non-transferable.
E. Statute of Limitations You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
F. HIPAA For the purpose of implementing the Privacy Rule and Health Insurance Portability and Accountability Act, Public Law 104-191, RISARC will comply with the requirements of the Business Associate Agreement and incorporated herein by reference.
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