TERMS & CONDITIONS
Last Revised: June 2, 2017
PLEASE READ THIS AGREEMENT (“AGREEMENT”) CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN PERFECTSERVE, INC. (“PERFECTSERVE,” “US” OR “WE”) AND CUSTOMER (THE INDIVIDUAL, PHYSICAL PRACTICE ENTITY, HOSPITAL OR OTHER ORGANIZATION ESTABLISHING AN ACCOUNT WITH PERFECTSERVE). CUSTOMER’S USE OF THE PERFECTSERVE SERVICE (DEFINED BELOW) IS SUBJECT TO THE TERMS SET FORTH HEREIN, WHICH INCLUDE TOPICS SUCH AS THE TERM OF THIS AGREEMENT, LIMITATIONS OF LIABILITY, DISCLAIMERS, PAYMENT TERMS AND EXPECTATIONS REGARDING HIPAA.
1. Definitions. For purposes of this Agreement, the following terms shall have the meanings indicated:
a. “Authorized Users” means the physicians, nurses and other clinicians, and employees that PerfectServe will assign and provide with a Named User Account.
b. “Content” means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of implementing and using the Service (as defined below).
c. “Customer Data” means any data, information or material (including any of Customer’s confidential information) that Customer submits to the Service in the course of using the Service).
d. “Go-Live Date” means the first day on which Customer begins using the Service.
e. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and all rules and regulations promulgated thereunder.
f. “Initial Implementation Period” means the period of time beginning on the Effective Date of an Order Form and continuing for a specified number of days, as defined on the Order Form, following the Go-Live date.
g. “Named User Account” means the user account assigned and provided by PerfectServe to the specific physicians, nurses and other clinicians, and employees who are Authorized Users of the Service.
h. “Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent Order Forms or Change Order Forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form and/or Change Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail).
i. “Protected Health Information” shall have the meaning given such term in HIPAA.
j. “Statement of Work” means a document that defines the outcomes, tasks and deliverables associated with implementing, revising and configuring the Services.
k. “Service” means the specific edition or module of PerfectServe’s voice, online and mobile clinical communication and collaboration tools and applications, billing, data analysis, or other services identified during the ordering process, developed, operated, and maintained by PerfectServe, accessible via the telephone, mobile device application, https://www.perfectserve.com or another designated web site or IP address, or ancillary online or offline products and services provided to Customer by PerfectServe, to which Customer is being granted access under this Agreement. PerfectServe has the right to change the features or functionality of the Service at any time and from time to time, and may charge additional fees for such features and functionality.
2. Term of Agreement/Termination/Suspension.
This Agreement starts when Customer accepts it. Customer accepts this Agreement through any action that indicates Customer’s assent hereto, including Customer’s execution of an Order Form, registration form or other document that references Customer’s acceptance of this Agreement, or when Customer begins to use (or through Customer’s continued use) of the Service by signing into a PerfectServe mobile application or the PerfectServe web site, by forwarding or referring Customer telephone calls to PerfectServe, or through a “click” or “checkbox” during the registration process. The term of this Agreement is subject to the Effective Date and Term on any Order Form executed between PerfectServe and Customer. PerfectServe can, without notice, suspend Customer’s use of the Service or terminate this Agreement at any time for cause. “Cause” includes, but is not limited to, (i) Customer paying its bill late more than once in any twelve- (12) month period; (ii) Customer becoming insolvent, ceasing to operate in the ordinary course as reasonably determined by PerfectServe, making an assignment for the benefit of creditors, filing a petition under the U.S. Bankruptcy Code or any similar statute (or the filing of such a petition against Customer) or the appointment of a receiver or similar officer to take charge of Customer’s property, or any other act indicative of bankruptcy or insolvency; (iii) violation of the terms of this Agreement or (iv) PerfectServe’s reasonable belief that Customer is misusing the Service or using it for any unlawful activity.
Neither Customer nor PerfectServe shall be liable to the other for compensation, reimbursement for investments or expenses, lost profits, loss of goodwill, incidental or consequential damages, or damages of any other kind or character, because of any exercise of its right to terminate this Agreement, as provided hereunder, or because of any election to refrain from extending the duration of this Agreement.
Termination of this Agreement for any reason shall terminate Customer’s use of and access to the Service, but shall not effect Customer’s obligation to pay for Service received or extinguish any right of a party to sue for violation of this Agreement. In addition, the terms of the Paragraphs 6-12 and 15 shall survive any termination of this Agreement.
3. Registration Information.
Customer agrees to provide accurate, current, and complete information required to register with the Service and at other points as may be required in the course of using the Service (“Registration Data”). Customer further agrees to maintain and update its Registration Data as required to keep it accurate, current, and complete. PerfectServe may terminate Customer’s rights to any or all of the Service if any information Customer provides is false, inaccurate or incomplete. Customer agrees that PerfectServe may store and use the Registration Data Customer provides for use in maintaining Customer’s account and billing fees.
4. Pricing/Customer’s Invoice.
Subject to any separate written agreement between Customer and PerfectServe, PerfectServe may change the pricing for its Service according to the terms under Service Fees and Invoicing of any Order Form or Change Order Form executed between PerfectServe and Customer. Customer’s invoice describes Customer’s charges (including any applicable sales tax) and may, from time-to-time, include other important information. Customer should read everything Customer receives in its invoice envelope. Unless otherwise specified in an Order Form or Change Order Form, PerfectServe invoices base charges monthly in arrears and all usage charges monthly in arrears and Customer agrees to pay its invoice within thirty (30) days of the date of the invoice. If PerfectServe does not receive payment in full within such time period, PerfectServe may, to the extent permitted by law, charge a late fee of up to 1½ percent a month (18 percent annually) or a flat $5 on unpaid balances, whichever is greater. PerfectServe may also charge for any collection agency fees billed to PerfectServe for trying to collect from Customer. PerfectServe may charge Customer up to $25 for any returned check, depending on applicable law. If Customer signs a credit card billing authorization that PerfectServe accepts, Customer is authorizing PerfectServe to charge any amounts Customer owes it, then or later, and to demand immediate payment from the card issuer. If Customer pays online through the PerfectServe website at https://www.perfectserve.com, that payment is made through use of a third party payment processor, and payment information Customer provides is sent directly to that third party. Please be aware that PerfectServe does not control, nor is it responsible for, the privacy policies or information practices of the third party payment processors. Customer should review the privacy policies posted on its site. See Paragraph 14, “Privacy,” below.
5. Grant of License; Restrictions.
PerfectServe hereby grants Customer a non-exclusive, non-transferable right to use the Service, solely for its internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are reserved by PerfectServe.
Without limiting the generality of the foregoing, except as otherwise provided herein, Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
Customer shall designate to PerfectServe Customer’s Authorized Users up to the number of licenses provided for in an applicable Order Form. Authorized Users may be reassigned from time to time to new Authorized Users who are replacing former Authorized Users who are no longer members of the Customer’s staff, have terminated employment or otherwise changed job status or function and no longer use the Service.
Customer shall not knowingly use the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
6. Proprietary Rights.
PerfectServe, or its licensor(s), retains all rights, title and interest in and to the Service, including all source code, object code, data, information, copyrights, trademarks, patents,
inventions and trade secrets embodied therein, and all other rights not expressly granted to Customer hereunder. Nothing in this Agreement constitutes a waiver of any of PerfectServe’s rights under the intellectual property laws of the United States or any other jurisdiction or under any other federal, state, or foreign laws.
7. Customer Data.
PerfectServe does not own Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and PerfectServe shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data
8. LIMITATION OF LIABILITY.
PerfectServe promises to use commercially reasonable efforts to ensure maximum reliability and availability of THE service, but PerfectServe cannot promise that THE service will be available at all times uninterrupted. To the fullest extent permitted by law, Customer agrees as follows: PerfectServe’s maximum liability to Customer is limited to a refund or rebate of charges FOR SERVICES PAID FOR BUT NOT RECEIVED. These limitations apply no matter what the theory of liability, whether fraud, misrepresentation, breach of contract, personal injury, product liability, or anything else. These limitations also mean that Customer is waiving, to the fullest extent permitted by law, attorneys’ fees and any punitive, treble, consequential, indirect, or special damages.
9. HIPAA Compliance.
Both PerfectServe and Customer agree not to use or disclose individually identifiable information in violation of HIPAA. While PerfectServe offers various products and services that can significantly reduce privacy and security risks when used as part of Customer’s comprehensive HIPAA risk management plan, HIPAA compliance requires Customer’s active participation. In particular, Customer acknowledges and agrees that it is Customer’s responsibility to conduct a HIPAA risk analysis and maintain a comprehensive HIPAA risk management program that includes appropriate physical, technical and administrative safeguards (including training of authorized users on its policies and procedures) with regard to Protected Health Information (as defined by HIPAA), including without limitation as to the particular risk areas noted in the disclaimers below.
10. DISCLAIMER: CERTAIN THIRD-PARTY SERVICES.
CUSTOMER ACKNOWLEDGES AND AGREES THAT FUNCTIONALITIES, CAPABILITIES OR SERVICES PROVIDED TO ITS AUTHORIZED USER DIRECTLY BY THIRD PARTIES (“THIRD-PARTY SERVICES”), INCLUDING, WITHOUT LIMITATION, SERVICES THAT ARE INNATE TO A PARTICULAR MOBILE DEVICE (SUCH AS USE OF “Siri” DICTATION SERVICE ON AN iPHONE) ARE NOT PROVIDED BY PERFECTSERVE AND DO NOT CONSTITUTE “SERVICES” UNDER THIS AGREEMENT. CUSTOMER REMAINS SOLEY RESPONSIBLE FOR ADOPTING APPROPRIATE SAFEGUARDS WITH RESPECT TO SUCH THIRD-PARTY SERVICES (INCLUDING, WHERE APPROPRIATE, POLICIES AND PROCEDURES PROHIBITING AUTHORIZED USERS FROM USING CERTAIN THIRD-PARTY SERVICES TO SEND, RECEIVE, MAINTAIN OR TRANSMIT PROTECTED HEALTH INFORMATION), AND FOR THE ACCURACY, SECURITY AND PRIVACY OF COMMUNICATIONS SENT, RECEIVED, MAINTAINED OR TRANSMITTED USING SUCH THIRD-PARTY SERVICES, INCLUDING, PUTTING IN PLACE BUSINESS ASSOCIATE AGREEMENTS WITH ANY SUCH THIRD PARTIES, IF REQUIRED BY HIPAA.
11. DISCLAIMER: COMMUNICATIONS MADE OUTSIDE OF PERFECTSERVE PLATFORM.
TEXTING AND OTHER COMMUNICATIONS OF PROTECTED HEALTH INFORMATION THAT CUSTOMER OR ITS AUTHORIZED USERS REQUEST PERFECTSERVE TO RELAY OUTSIDE OF THE PERFECTSERVE COMMUNICATIONS PLATFORM (INCLUDING, FOR EXAMPLE, WHERE CUSTOMER OR AN AUTHORIZED USER REQUESTS THAT PERVECTSERVE RELAY A MESSAGE BY SMS TEXT) POSE HEIGHTENED PRIVACY AND SECURITY RISKS. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS ITS SOLE RESPONSIBILITY TO DETERMINE, AS PART OF ITS HIPAA RISK ANALYSIS, WHETHER TO PROHIBIT OR PERMIT SUCH COMMUNICATIONS AND, TO THE EXTENT SUCH COMMUNICATIONS ARE PERMITTED, TO IMPLEMENT APPROPRIATE SAFEGUARDS (INCLUDING POLICIES, PROCEDURES AND TRAINING OF ALL AUTHORIZED USERS) TO MANAGE THESE RISKS TO A REASONABLE AND APPROPRIATE LEVEL CONSISTENT WITH HIPAA.
12. Direction as to Communications Outside of PerfectServe Platform.
Customer hereby authorizes and directs PerfectServe to communicate outside of the PerfectServe communications platform as necessary for the Service, including without limitation, to make communications to any mobile device and in any manner (including by SMS text) designated by Customer or any Authorized User. PerfectServe agrees to comply, within thirty (30) days of our receipt of same, with Customer’s reasonable direction to PerfectServe as to the types and amounts of Protected Health Information that may, consistent with Customer’s risk analysis, be included in any such communications originating from PerfectServe, or with any written direction from Customer prohibiting PerfectServe, consistent with Customer’s risk analysis, from relaying communications of Protected Health Information outside of the PerfectServe communications platform. Any additional costs associated with PerfectServe’s compliance with such directives shall be borne by Customer.
13. Acceptance of Business Associate Addendum as Default Standard.
By accepting this Agreement, Customer agrees that PerfectServe’s use or disclosure of Protected Health Information under this Agreement or otherwise in connection with the provision of the Service to Customer shall be governed by the form of Business Associate Agreement maintained by PerfectServe on its website at https://www.perfectserve.com (the “Business Associate Addendum”). Customer acknowledges and agrees that PerfectServe may amend the terms of the website Business Associate Addendum from time to time and that such amended terms shall be effective upon posting to our website. Customer and PerfectServe both agree that this Paragraph 13 shall be of no force and effect, and the website Business Associate Addendum shall not apply, to the extent where the parties otherwise maintain during the term in full force and effect a written Business Associate Agreement signed by both parties that complies with HIPAA (or is deemed to comply with HIPAA as a result of “grandfathering” during the period of such deemed compliance).
Customer agrees to defend, indemnify and hold harmless PerfectServe from and against any and all actions, causes of action, suits, claims, demands, damages, liabilities, losses, costs and expenses (including without limitation reasonable attorneys’ fees, disbursements and court costs) arising from or in connection with (i) Customer’s use of the Service or any Content or (ii) Customer’s violation of this Agreement.
16. Modification/Amendment of this Agreement.
This Agreement may be amended from time to time by PerfectServe, by notifying Customer of such amendments in writing. Such amendments shall be effective thirty (30) days after notice, subject to Customer’s right to terminate this Agreement as described herein. Customer’s continued use of the Service following such thirty (30) day period will constitute acceptance of the modified Agreement. Accordingly, Customer should revisit PerfectServe’s website at https://www.perfectserve.com on a regular basis.
If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and all other provisions of this Agreement shall remain in full force and effect.
Customer may not assign this Agreement without the prior written consent of PerfectServe. PerfectServe may assign this Agreement in its sole discretion.
PerfectServe’s failure to act on any breach of any provision hereof shall not be construed as a waiver of the enforcement of any such provision unless PerfectServe agrees to such waiver in writing. A waiver of any part of this Agreement in one instance will not be deemed a waiver of any other part or any other instance.
20. Entire Agreement/Governing Law.
This Agreement (which may include the Business Associate Addendum), together with any separately executed Order Form, Change Order Form or written Business Associate Agreement, constitutes the entire understanding between the Customer and PerfectServe with respect to the subject matter hereof and supersedes all prior representations, agreements, negotiations and discussions between Customer and PerfectServe. The validity and effectiveness of this Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Tennessee, without giving effect to the provisions, policies or principles of any state law relating to choice or conflict of laws, and those of the United States of America. Any legal action or proceeding with respect to this Agreement may be brought exclusively in the federal or state courts located in or having jurisdiction over Knoxville, Tennessee. Service of process shall be made in any manner allowed by applicable law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Both Customer and PerfectServe agree to comply with all Terms and Conditions set forth on www.perfectserve.com (which may be subject to change from time to time as provided therein), except to the extent that such Terms and Conditions conflict with any terms contained within a separate signed Master Services Agreement between Customer and PerfectServe. If any conflict or variation exists between the signed Master Services Agreement and the Terms and Conditions on the PerfectServe website, the terms of the signed Master Services Agreement shall prevail and, as such, the conflicting or varying language contained within the Terms and Conditions on the PerfectServe website shall not apply.