PRACTICEWISE SERVICE USE AGREEMENT
THIS PRACTICEWISE SERVICE USE AGREEMENT ("AGREEMENT") IS BETWEEN PRACTICEWISE, LLC, A FLORIDA LIMITED LIABILITY COMPANY ("PRACTICEWISE") AND ANY PURCHASER OR USER OF THE PRACTICEWISE SERVICES ("CUSTOMER"). THIS AGREEMENT GOVERNS CUSTOMER'S USE AND PRACTICEWISE'S SUPPLY OF SERVICES DURING THE APPLICABLE SUBSCRIPTION PERIOD OR LICENSE TERM. PRACTICEWISE IS WILLING TO SUPPLY THESE SERVICES AND SOFTWARE ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, PURCHASING OR USING SERVICES SUPPLIED BY PRACTICEWISE. BY DOWNLOADING, USING OR PURCHASING THESE SERVICES CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU INDIVIDUALLY REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY AND THAT THIS AGREEMENT WILL BE LEGALLY BINDING ON THAT ENTITY.
IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN CUSTOMER MUST NOT USE ANY PRACTICEWISE SERVICES OR SOFTWARE.
1. RECITALS/SCHEDULES/EXHIBITS. The above recitals are true and correct and are incorporated herein by this reference. Any and all schedules and exhibits attached hereto are incorporated herein by this reference.
2. EFFECTIVE DATE. This Agreement shall become effective (the "Effective Date") upon the earlier of the date that Customer accepts the terms of this Agreement or the date that Customer uses Services (as defined in Section 3 below).
3. DEFINITIONS. In addition to terms defined throughout this Agreement, the following terms used in this Agreement with their initial letters capitalized shall, unless the context otherwise requires, have the meanings specified in this Section.
a. "Customer Data" means any electronic data or information contained in any database, template or other similar document submitted by Customer through the Practicewise Service.
b. "Documentation" means any user manuals, handbooks, online materials, specifications or forms provided by Practicewise that describe the features, functionality or operation of the Practicewise Service.
c. "Fees" means the fees paid by Customer prior to accessing the Practicewise Service.
d. "Order Form" means the online form completed by Customer through Practicewise's online ordering utility, which specifies certain terms related to Customer's access to the Practicewise Service, including Fees, payment information, Customer contact and mailing information, number of Users, and Term.
e. "Practicewise Service" means the online service delivered by Practicewise to Customer using the Practicewise System.
f. "Practicewise System" means the technology, including hardware and software, used by Practicewise to deliver the Practicewise Service to Customer in accordance with this Agreement.
g. "Services" means the database access, update, and technical support services for the Practicewise System provided by Practicewise to Customer under this Agreement.
h. "Term" means the duration of this Agreement.
i. "User ID" means the unique identification name and password assigned to each User for access to the Practicewise Service.
j. "User and Users" means Customer and Customer's employees, representatives, consultants, contractors or agents who are authorized to use the Practicewise Service on behalf of Customer.
a. Practicewise Service. Subject to the terms of this Agreement, Practicewise hereby grants to Customer a non-transferable, non-exclusive subscription to access and use the Practicewise Service by the number of Users for which Customer has paid the applicable Customer Fee, in accordance with the Documentation and solely for Customer's internal business purposes ("Customer's Business Purposes").
b. Additional Users. Access to the Practicewise Service cannot be shared with anyone other than a User. If Customer wishes to add additional Users ("Additional Users"), Customer's Subscription Administrator must submit a new executed Order Form ("New Order Form"). Upon Practicewise's approval of the terms of a New Order Form, Practicewise shall make the Practicewise Service available to the Additional Users on the terms and conditions set forth in this Agreement and the approved new Order Form. With respect to Additional Users: (i) the term will be coterminous with the preexisting subscription term (either initial term or renewal term); and (ii) Customer will be responsible for any additional Fees for the Additional Users as approved by Practicewise.
c. Service Levels. Subject to the terms of this Agreement, Practicewise shall use commercially reasonable efforts to: (a) make the Practicewise Service available 24/7 (24 hours a day, 7 days a week), except for: (i) planned downtime, which shall be announced via the Practicewise website; Practicewise will use its best efforts to give eight (8) hours or more notice that the Practicewise Service will be unavailable; (ii) downtime caused by circumstances beyond Practicewise's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications or network failures or delays, computer failures involving hardware or software not within Practicewise's possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks), but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes; and (iii) updating information in the Practicewise database beyond the date stated on the Practicewise website. Customer is solely responsible for providing, at its own expense, all network access to the Practicewise Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Practicewise Service.
d. Support Services. Practicewise will, during the Term, provide technical support for the Practicewise Service by: (i) acknowledging and responding within two business days to customer support queries; and (ii) making available an Internet query capability for customers to ask product questions and submit problems.
5. CUSTOMER'S USE OF THE PRACTICEWISE SERVICE.
a. Access and Security Guidelines. Customer's System Administrator will be provided that number of User IDs corresponding to the number of Users for which Customer has paid the applicable Fees. Customer shall be responsible for ensuring the security and confidentiality of its User ID. User IDs may be shared within Customer's organization, provided that User IDs may not be provided to any individual who is not a User (other than the Subscription Administrator) and each User ID may be assigned to and used by only one individual User. Customer will use reasonable efforts to prevent unauthorized access to, or use of, the Practicewise Service, and will notify Practicewise promptly of any such unauthorized use. Customer will not use its access to the Practicewise Service to: (a) access or copy any data or information not purchased by Customer; (b) access, copy, harvest, collect, gather or assemble information or data regarding other users without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Practicewise Service or the data contained therein; or (d) harass or interfere with another user's use and enjoyment of the Practicewise Service. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in its use of the Practicewise Service.
b. Customer Data. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Practicewise may take remedial action if Customer Data violates this Section; however, Practicewise is under no obligation to review Customer Data for accuracy or potential liability.
c. Use Restrictions. Customer is responsible for all activities that occur under Customer's User accounts. Customer will not, and will not attempt to: (a) interfere in any manner with the operation of the Practicewise Service; (c) allow a third party to access the Practicewise Service or transfer to a third party any of Customer's rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Practicewise Service for the benefit of a third party or to operate a service bureau; (d) copy, modify, distribute, sell, offer for sale, or make derivative works based on any part of the Practicewise System or Practicewise Service; (e) create Internet "links" to or from the Practicewise Service, or "frame" or "mirror" any of Practicewise's content which forms part of the Practicewise Service (other than on Customer's own internal intranets); or (f) otherwise use the Practicewise Service in any manner that exceeds the scope of use permitted under this Agreement.
d. FEES AND PAYMENT. As consideration for the subscription to the Practicewise Service provided by Practicewise under this Agreement, Customer will pay Practicewise the Fees set forth in the applicable Order Form. Fees are usage-based and may depend on the number of users of the Practicewise Service, the searches, and the number of features selected. If Customer is authorized to exceed Customer's prepaid usage by submission of a new purchase order by Customer and acceptance of such purchase order by Practicewise, Customer shall pay for any additional usage above and beyond the prepaid usage. All Fees are to be paid prior to Customer's use of the Practicewise Service. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, or other transactions contemplated under this Agreement. Practicewise reserves the right (in addition to any other rights or remedies Practicewise may have) to discontinue the Practicewise Service and suspend all User IDs and Customer's access to the Practicewise Service if any Fees set forth in an Order Form are not paid in full.
a. Software, System and Technology. Customer acknowledges that Practicewise retains all right, title and interest in and to the Practicewise System and all software, materials, formats, interfaces, information, data, content and all proprietary information and technology used by Practicewise or provided to Customer in connection with the Practicewise Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or learned as a result of Customer's use of the Service (the "Practicewise Technology"), and that the Practicewise Technology is protected by intellectual property rights owned by or licensed to Practicewise. Other than as expressly set forth in this Agreement, no license or other rights in the Practicewise Technology are granted to the Customer, and all such rights are hereby expressly reserved by Practicewise.
b. Customer Data. Customer retains all right, title and interest in and to the Customer Data. Customer grants to Practicewise all necessary licenses in and to such Customer Data solely as necessary for Practicewise to provide the Practicewise Service to Customer or as required by law. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Practicewise Service. Practicewise will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, Practicewise will access and use such Customer Data only as required to perform services on behalf of Customer.
c. TERM AND TERMINATION. The Term of this Agreement shall be from the Effective Date for the period of time elected by Customer in the Order Form. Practicewise will provide the Services to Customer, conditioned upon compliance with the following: (i) the Services are used to benefit only Customer's Business Purposes (and not to benefit any third party or in connection with services provided by Customer to a third party, unless otherwise agreed to by Practicewise in a separate, written agreement), and (ii) Customer complies with all the terms and conditions of this Agreement (including timely payment of all fees). Practicewise reserves the right to suspend any Services if Customer is late in paying any fees or if Customer violates any of the terms of this Agreement.
7. DISCLAIMER OF WARRANTY. PRACTICEWISE MAKES NO WARRANTY CONCERNING THE PRACTICEWISE SYSTEM OR PRACTICEWISE SERVICE AND CUSTOMER ACKNOWLEDGES THAT PRACTICEWISE'S SOLE OBLIGATION WITH REGARD TO THE PRACTICEWISE SERVICE IS TO USE COMMERCIALLY REASONABLE EFFORTS TO MEET THE SERVICE LEVELS DESCRIBED IN THIS AGREEMENT. ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRACTICEWISE SERVICE, THE PRACTICEWISE SYSTEM AND ALL OTHER DATA, MATERIALS, AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY PRACTICEWISE AND ITS SUPPLIERS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. PRACTICEWISE AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. PRACTICEWISE DOES NOT WARRANT THAT THE PRACTICEWISE SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE OR VIRUS-FREE.
8. LIMITATIONS OF LIABILITY. WITH THE EXCEPTION OF CAUSES OF ACTION ASSOCIATED WITH SECTION 10, IN NO EVENT WILL PRACTICEWISE'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED THE FEES RECEIVED BY PRACTICEWISE FROM CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE FIRST ACCRUAL OF ANY SUCH CAUSE OF ACTION. REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL PRACTICEWISE BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF COVER IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT PRACTICEWISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. CUSTOMER AGREES THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SET FORTH HEREIN WILL APPLY REGARDLESS OF WHETHER CUSTOMER HAS ACCEPTED THE PRACTICEWISE SERVICE. CUSTOMER AGREES THAT PRACTICEWISE HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF LIABILITY SET FORTH HEREIN, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
a. By Practicewise. If any action is instituted by a third party against Customer based upon a claim that the Practicewise Service or Practicewise System, as delivered, infringes a United States patent, copyright or trademark, Practicewise will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. Practicewise may, at its option and expense, and as Customer's exclusive remedy hereunder: (a) procure for Customer the right to continue using the Practicewise Service; (b) replace or modify the Practicewise System or Practicewise Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer's access to the Practicewise Service and refund any amounts previously paid for the Practicewise Service attributable to the remainder of the then-current term of this Agreement. Practicewise will have no liability to Customer for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Practicewise Service or Practicewise System (i) after it has been modified by Customer or a third party without Practicewise's prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Practicewise where the combination is the basis for the infringing activity. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF PRACTICEWISE AND THE EXCLUSIVE REMEDY OF CUSTOMER AGAINST PRACTICEWISE OR ANY OF ITS SUPPLIERS FOR ANY INFRINGEMENT CLAIM.
b. By Customer. If any action is instituted by a third party against Practicewise: (a) arising out of or relating to the use of the Practicewise System or Practicewise Service (including claims by any customer or business partner of Customer) by Customer or any third party with Customer's User ID; or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Practicewise and shall pay all damages attributable to such claim which are finally awarded against Practicewise or paid in settlement of such claim. In the event that Customer fails to fulfill its obligations under this Section, Customer shall be liable to Practicewise for all fees, costs, and damages incurred by Practicewise, including without limitation, all sums prior to the institution of any actions, after entry of any settlement or judgment, and at all trial and appellate levels. Customer consents to entry of a judgment against Customer for all amounts due to Practicewise hereunder.
c. Conditions. As a condition of the foregoing indemnification obligations, the indemnified party will: (a) inform the indemnifying party of a claim as soon as reasonably practicable after the indemnified party receives notice of the claim; (b) permit the indemnifying party to assume direction and control of the defense of the claim (including the right to settle solely for monetary consideration); and (c) cooperate as requested by the indemnifying party (at its expense) in the defense of the claim. The indemnified party shall have the right to participate, at its expense, in the defense of any claim that is subject to indemnification as set forth in this Section 9.
10. MISCELLANEOUS PROVISIONS.
a. Publicity. Practicewise and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and Practicewise, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within three (3) business days of submittal. Customer agrees to allow Practicewise to use Customer's name in customer lists and other promotional materials describing Customer as a customer of Practicewise and a user of the Practicewise Service.
b. Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement, to any third party without Practicewise's prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Practicewise may assign this Agreement without Customer's consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, and Practicewise may subcontract certain aspects of the Practicewise Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Practicewise of any of its obligations hereunder. Any dissolution, merger, consolidation or other reorganization of Customer, the sale or other transfer of all or substantially all of the assets or properties of Customer, or the sale or other transfer of a controlling interest in Customer, constitutes an assignment for all purposes of this Section. Any attempt to assign this Agreement, without such consent, will be null and void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
c. Governing Law and Exclusive Venue. The parties agree and acknowledge that this Agreement shall be governed by and construed under and in accordance with the laws of the State of Florida without giving effect to principles of conflict of laws. Customer agrees to comply fully with all relevant export laws and regulations of the United States of America. The exclusive venue and jurisdiction for its enforcement and any action based on this Agreement (including any action for declaratory relief) shall lie in the Circuit Court for the Eighteenth Judicial Circuit in and for Brevard County, Florida or in the United States District Court for the Middle District of Florida, Orlando Division (provided, however, that nothing in this Agreement will prevent Practicewise from seeking injunctive relief to enforce the terms of this Agreement in any competent venue or jurisdiction). Each party hereby irrevocably submits and consents in advance to such jurisdiction and venue in any action or proceeding either commenced by, or brought against any such party, in such court.
d. Remedies. The parties' rights and remedies under this Agreement are cumulative. Customer acknowledges that the Practicewise System contains valuable trade secrets and proprietary information of Practicewise, that any actual or threatened breach any portion of this agreement will constitute immediate, irreparable harm to Practicewise for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach, and waives any requirement by Practicewise for posting bond. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive. Unauthorized reproduction or distribution is subject to civil and criminal penalties.
e. Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the physical and/or email address set forth in the initial Order Form (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested), (c) sent via email, cable, telegram, telex, telecopier, fax (all with confirmation of receipt) or (d) sent by recognized air courier service.Customer will provide Practicewise with accurate and complete billing information and will keep such information current at all times.
f. Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing.
g. Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
h. Entire Agreement. This Agreement, together with any related Order Forms is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it. Additional terms and pricing may be specified in ancillary documents, such as accepted purchase orders or Practicewise's then-current price list, and these quantities are deemed to be a part of this Agreement. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
i. Trademarks. The Practicewise System, website, and Practicewise Services contain Practicewise's trademarks. This Agreement does not give Customer any rights to distribute any materials under Practicewise's trademarks or otherwise use Practicewise's trademarks.
j. Additional Use Limitations. Customer acknowledges that the Practicewise Services include the valuable proprietary information of Practicewise and are provided on the condition that they not be used for any purpose other than Customer's internal use in accordance with this Agreement, and Customer agrees not to use the same for any other purpose. Without limiting the foregoing, Customer agrees that it will not use nor assist any agent, affiliate or third party to use any information, material or know-how obtained through use of the Practicewise Services, to supply products or services that compete with the products or services offered by Practicewise.
k. Service Manager. Practicewise reserves the right to include a management function for tracking and controlling usage ("Service Manager"), which is intended to assist Customer in abiding by the limits of its prepaid usage. In the event Customer disables the Service Manager, or it otherwise becomes inoperable for any reason, Customer shall remain obligated to pay the applicable fees for its actual usage. Customer acknowledges that the Service Manager may automatically disable the access of Customer at the end of the purchased term or otherwise prevent unauthorized use. Practicewise shall not be liable for damages of any kind as a result of the Service Manager disabling the Customer's access to the Practicewise Service.
l. Electronic Communications. Customer's acceptance of the terms of this Agreement and any electronic communications with Practicewise shall constitute Customer's consent to receive communications from Practicewise electronically. Practicewise will communicate with Customer by email or by posting notices on this website. Customer agrees that all agreements, notices, disclosures, and other communications that Practicewise provides to Customer electronically satisfy any legal requirement that such communications be in writing.
m. Professional Advice. The information and services provided by Practicewise are not intended to and shall not be used as professional advice. Customer uses the content, information, and services from Practicewise at Customer's own risk.
n. Advertisers. The Practicewise Services including its website may contain advertising and sponsorship. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the Practicewise website is accurate and complies with applicable laws. Practicewise will not be responsible for the illegality of, or any error or inaccuracy in, advertisers' or sponsors' materials, or for the acts or omissions of such advertisers or sponsors.