Terms and Conditions
Therapy Track Services
As used
in this Agreement and in any Order Forms now or hereafter
attached hereto:
"Agreement"
means this online services agreement, and any Order Forms,
whether written or submitted online via the Online Order
Center,
and any materials available on the Therapy Track web site
specifically incorporated by reference herein, as such materials,
including
the terms of this Agreement, may be updated by Therapy Track
from time to time in its sole discretion;
"Content" means
the audio and visual information, documents, software, products
and services contained or made available to Customer in the
course of using the Service;
"Customer, You or Customer's"
means the individual or legal entity, its directors, officers,
affiliates agents, and employees (whether employed directly
or through a contract company), as identified in the registration
and identification data provided to Therapy Track via this
web site;
"Customer Data"
means any data, information or material provided or submitted
by Customer to Therapy Track in the course of utilizing the
Service;
"Effective Date" means the earlier of either the
date this Agreement is accepted by selecting the "I Accept"
option presented on the screen after this Agreement is displayed
or the date the Agreement is signed or the date Customer begins
using the Service;
"Initial Term"
means the period during which Customer is obligated to pay
for the Service equal to the billing frequency selected by
Customer during the subscription process, i.e. if the billing
frequency is monthly, the Initial Term is one month;
"Intellectual
Property Rights" means unpatented inventions, patent applications,
patents, design rights, copyrights, trademarks, service marks,
trade names, domain name rights, mask work rights, know-how
and other trade secret rights, and all other intellectual
property rights, derivatives thereof, and forms of protection
of a similar nature;
"License Administrator(s)"
means those Users designated by Customer who are authorized
to purchase licenses online using the Online Order Center
or by executing written Order Forms;
"License Term(s)" means
the period(s), excluding the Initial Term, during which a
specified number of Reporting Units are licensed to use the
Service pursuant to the Order Form(s);
"Order Form(s)"
means the initial subscription for the Service and any subsequent
order forms submitted online or offline, specifying, among
other things, the number of users and other services contracted
for, the applicable fees, the billing period, and other charges
as agreed to between the parties and each such Order Form
shall be incorporated into and 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 this Agreement
shall prevail;
"Online Order Center"
means Therapy Track's online application that allows the License
Administrator designated by Customer to, among other things,
add additional Users to the Service;
"Reporting Unit" means the level of reporting which groups
together productivity, cost, safety, quality and/or outcome
data entered into the system and provides the reporting of
this data. The ability to manage user login and password information
is determined by the Reporting Unit;
"Therapy Track"
means RVUpro, Inc., DBA Therapy Track, a Texas corporation,
having its principal place of business at 5100 Westheimer,
Suite 200, Houston,
TX 77098 or its successors;
"Therapy Track Technology"
means all of Therapy Track's proprietary technology (including
software, hardware, products, processes, algorithms, user
interfaces, know-how, techniques, designs and other tangible
or intangible technical material or information) made available
to Customer by Therapy Track in providing the Service;
"Service(s)"
means the online therapist management, data analysis, and
other services developed, operated, and maintained by Therapy
Track accessible via http://www.therapytrack.com or other
designated web site or IP address or ancillary services rendered
to Customer by Therapy Track, to which Customer is being granted
access under this Agreement, including the Therapy Track Technology
and the Content;
"System Administrator(s)"
means those Users designated by Customer who are authorized
to create User accounts and otherwise administer Customer's
use of the Service;
"Use Guidelines"
means the guidelines for use of the Service promulgated from
time to time by Therapy Track pursuant to this Agreement and
found at http://www.therapytrack.com/;
"User(s)" means
Customer, its employees, representatives, consultants, contractors
or agents who are authorized to use the Service and have been
supplied user identifications and passwords by Customer (or
by Therapy Track at Customer's request).
All data submitted by Customer to the Service,
whether posted by Customer or by third parties, shall remain
the sole property of Customer or such third parties, as applicable,
unless specifically notified in advance. Therapy Track has
security measures in place for the Services
to help protect against the loss, misuse and alteration
of the data under Therapy Track's control. When the Services
are accessed using Netscape Navigator, or Microsoft Internet
Explorer versions 4.0 or higher, Secure Socket Layer (SSL)
technology protects information using both server authentication
and data encryption to help ensure data is safe, secure
and available only to you. Therapy Track also hosts the
Services in a secure server environment using a firewall
and other advanced
technology to prevent interference or access from outside
intruders. Finally, Therapy Track requires unique facility
numbers, user names and password combinations that must
be entered each time a customer
logs on. These safeguards help prevent unauthorized access,
maintain data accuracy and ensure the appropriate use of
data.
Customer will pay all fees or charges to its
account in accordance with the fees, charges, and billing
terms in effect at the time a fee or charge is due and payable.
License fees are nonrefundable whether or not User licenses
are actively used. Customer must provide Therapy Track with
valid credit card or approved purchase order information as
a condition to signing up for the Service. Therapy Track reserves
the right to change the fees, applicable charges and usage
policies and to introduce new charges at any time, upon at
least 30 days prior notice to Customer, which notice may be
provided by e-mail.
Therapy Track charges and collects in advance for use of
the Service. Therapy Track will automatically renew and
bill Customer's
credit card or issue an invoice to Customer (a) every month
for monthly licenses, (b) every quarter for quarterly licenses,
or (c) every six months for semi-annual licenses, or (d)
each year on the subsequent anniversary for annual
licenses. Fees for other services will be charged on an as-quoted
basis. Therapy Track's fees are exclusive of all taxes,
levies,
or duties imposed by taxing authorities, and Customer shall
be responsible for payment of all such taxes, levies, or
duties,
excluding only United States (federal or state) taxes based
solely on Therapy Track's income.
Invoices will be generated at the start of a license or billing
period and approximately one month in advance of the start
of any renewal or subsequent billing period and shall be due
within 30 days. Customer's account will be considered delinquent
(in arrears) if payment in full is not received by the license
or billing period start date. If Customer believes that the
bill is incorrect, Customer must contact us in writing within
60 days of the invoice date of the invoice containing the
amount in question to be eligible to receive an adjustment
or credit.
In addition to any other rights granted to Therapy Track herein,
Therapy Track reserves the right to suspend or terminate this
Agreement and Customer's access to the Service if Customer's
account becomes delinquent (falls into arrears). Delinquent
invoices (accounts in arrears) are subject to interest of
1.5% per month on any outstanding balance, or the maximum
permitted by law, whichever is less, plus all expenses of
collection. Customer will continue to be charged for User
licenses during any period of suspension. If Customer or Therapy
Track initiate termination of this Agreement, Customer will
be obligated to pay the balance due on Customer's account
computed in accordance with the Charges and Payment of Fees
section above. Customer agrees and acknowledges that Therapy
Track has no obligation to retain the Customer Data if the
account is more than 30 days overdue, and such Customer Data
will be irretrievably deleted if the account is unpaid after
30 days.
Therapy Track grants Customer a non-exclusive, non-transferable
worldwide right to use the Service, solely for Customer's
own internal business purposes subject to the terms of this
Agreement. Subject to the terms of this Agreement, Customer
grants to Therapy Track the non-exclusive, worldwide, right
to use, copy, store, transmit and display Customer Data solely
to the extent necessary to provide the Service as requested
by Customer. Customer shall not (i) license, sublicense, sell,
resell, transfer, assign, distribute or otherwise make available
to any third party the Service or the Content, (ii) modify
or make derivative works based upon the Therapy Track Technology
or the Content; (iii) commercially exploit the Service or
the Content in any way, or (iv) create Internet "links" to
the Service or "frame" or "mirror" any Content contained in,
or accessible from, the Service on any other server, wireless
or Internet-based device. Therapy Track and its licensors
reserve all rights not expressly granted to Customer.
Customer shall not (i) license, sublicense, sell, resell,
transfer, assign, distribute or otherwise make available to
any third party the Service or the Content, (ii) modify or
make derivative works based upon the Therapy Track Technology
or the Content; (iii) commercially exploit the Service or
the Content in any way, or (iv) create Internet "links" to
the Service or "frame" or "mirror" any Content contained in,
or accessible from, the Service on any other server, wireless
or Internet-based device.
Customer is responsible for any and all activities that occur
under Customer's user accounts. Customer shall: (i) notify
Therapy Track immediately of any unauthorized use of any password
or account or any other known or suspected breach of security;
(ii) report to Therapy Track immediately and use reasonable
efforts to stop immediately any copying or distribution of
Content that is known or suspected by Customer or its Users;
(iii) assure that use of the Service shall at all times comply
with all applicable local, state, federal, and international
laws, regulations, and conventions, including without limitation
those related to data privacy, international communications,
and the exportation of technical or personal data; (iv) assure
that use of the Service by Customer's Users shall at all times
conform to the Use Guidelines; and (v) not impersonate another
Therapy Track user or provide false identity information to
gain access to or use the Service.
Customer, not Therapy
Track, shall have sole responsibility for the accuracy, quality,
integrity, legality, reliability, appropriateness and copyright
of all Customer Data, and Therapy Track shall not be responsible
or liable for the deletion, correction, destruction, damage,
loss or failure to store any Data.
This Agreement commences on the Effective
Date. The Initial Term of this Agreement will be one month,
three months, or one year as determined by Customer's election
during the online subscription process, commencing on the
date Customer agrees to pay for the Service by completing
the online subscription form. This Agreement will automatically
renew upon the expiration of the Initial Term. Either party
may terminate this Agreement or reduce the level of service
by notifying the other party in writing at least 30 days prior
to the end of the then current term. Customer agrees and acknowledges
that Therapy Track has no obligation to retain the Customer
Data, and may delete such Customer Data, more than 30 days
after termination.
Any breach of Customer's payment obligations, Use Guidelines,
unauthorized use of the Therapy Track Technology or Service
will be deemed a material breach of this Agreement. Therapy
Track, in its sole discretion, may terminate Customer's password,
account or use of the Service if Customer breaches or otherwise
fail to comply with this Agreement. Customer agrees to abide
by all applicable local, state, national and foreign laws,
treaties and regulations in connection with the Service. Customer
agrees and acknowledges that Therapy Track has no obligation
to retain the Customer Data, and will delete such Customer
Data, if Customer has materially breached this Agreement,
including but not limited to failure to pay outstanding fees,
and such breach has not been cured within 30 days of notice
of such breach.
Therapy Track alone (and its licensors, where applicable)
shall own all right, title and interest, including all related
Intellectual Property Rights, in and to the Therapy Track
Technology, the Content and the Service and any suggestions,
ideas, enhancement requests, feedback, recommendations or
other information provided by Customer or any other party
relating to the Service. This Agreement is not a sale and
does not convey any rights of ownership in or related to the
Service, Therapy Track Technology or Intellectual Property
owned by Therapy Track to Customer. The Therapy Track name,
the Therapy Track logo, and the product names associated with
the Service are trademarks of Therapy Track or third parties,
and no right or license is granted to use them.
Each party represents and warrants that
it has the legal power and authority to enter into this Agreement.
Therapy Track represents and warrants that it will provide
the Service in a manner consistent with general industry standards
reasonably applicable to the provision thereof and that the
Service will perform substantially in accordance with the
online Therapy Track help documentation under normal use and
circumstances. Customer represents and warrants that it has
not falsely identified itself nor provided any false information
to gain access to the Service, that Customer's billing information
is correct, and that Customer will comply with the Use Guidelines.
Customer shall indemnify and hold Therapy Track, its licensors
and each such party's parent organizations, subsidiaries,
affiliates, officers, directors, employees, attorneys and
agents harmless from and against any and all claims, costs,
damages, losses, liabilities and expenses (including attorneys'
fees and costs) arising out of or in connection with: (i)
a claim alleging that use of the Customer Data infringes the
rights of, or has caused harm to, a third party; (ii) a claim,
which if true, would constitute a violation by Customer of
the representations and warranties; or (iii) a claim arising
from the breach by Customer or Users of this Agreement, provided
in any such case that Therapy Track (i) gives written notice
of the claim promptly to Customer (ii) gives Customer sole
control of the defense and settlement of the claim (provided
that Customer may not settle or defend any claim unless it
unconditionally releases Therapy Track of all liability and
such settlement does not affect Therapy Track's business or
Service); (iii) provides to Customer all available information
and assistance; and (iv) has not compromised or settled such
claim.
Therapy Track shall indemnify and hold Customer and its parent
organizations, subsidiaries, affiliates, officers, directors,
employees, attorneys and agents harmless from and against
any and all claims, costs, damages, losses, liabilities and
expenses (including attorneys' fees and costs) arising out
of or in connection with: (i) a claim alleging that the Service
directly infringes a copyright, a U.S. patent issued as of
the Effective Date, or trademark of a third party; (ii) a
claim, which if true, would constitute a violation of Therapy
Track of the representations or warranties; or (iii) a claim
arising from breach of this Agreement by Therapy Track; provided
that Customer (i) promptly gives written notice of the claim
to Therapy Track; (ii) gives Therapy Track sole control of
the defense and settlement of the claim (provided that Therapy
Track may not settle or defend any claim unless it unconditionally
releases Customer of all liability); (iii) provides to Therapy
Track all available information and assistance; and (iv) has
not compromised or settled such claim. Therapy Track shall
have no indemnification obligation, and Customer shall indemnify
Therapy Track pursuant to this Agreement, for claims arising
from any infringement arising from the combination of the
Service with any of Customer's products, service, hardware
or business process(s).
THERAPY TRACK AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY,
OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY,
TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE
OR ANY CONTENT; THERAPY TRACK AND ITS LICENSORS DO NOT REPRESENT
OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE,
TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION
WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE
SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS,
(C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE
QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL
PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL
MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR
DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S)
THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS;(III) THE SERVICE AND ALL CONTENT IS PROVIDED
TO CUSTOMER STRICTLY ON AN "AS IS" BASIS; AND (IV) ALL CONDITIONS,
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY
DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW
BY THERAPY TRACK AND ITS LICENSORS.
THERAPY TRACK'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS,
AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND
ELECTRONIC COMMUNICATIONS. THERAPY TRACK IS NOT RESPONSIBLE
FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING
FROM SUCH PROBLEMS.
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED
THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE
TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING
RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR
ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES
OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS,
USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY
WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED
TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT
OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY,
ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN
IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S
LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion
of implied warranties or limitation of liability for incidental
or consequential damages, so the exclusions set forth above
may not apply to Customer.
Therapy
Track may give notice by means of a general notice on the
Service, electronic mail to Customer's e-mail address on
record in Therapy Track's account information, or by written
communication
sent by first class mail or pre-paid post to Customer's address
on record in Therapy Track's account information. Such notice
shall be deemed to have been given upon the expiration of
48 hours after mailing or posting (if sent by first class
mail or pre-paid post) or 12 hours after sending (if sent
by email). Customer may give notice to Therapy Track (such
notice shall be deemed given when received by Therapy Track)
at any time by any of the following: letter sent by confirmed
facsimile to Therapy Track at the following fax numbers (whichever
is appropriate): (713) 527-0453; letter delivered by nationally
recognized overnight delivery service or first class postage
prepaid mail to Therapy Track at the following addresses:
Therapy Track, 5100 Westheimer, Suite 200, Houston, TX 77098,
USA addressed to the attention of: Chief Financial Officer.
Therapy Track reserves the right to change the terms and conditions
of this Agreement or its policies relating to the Service
at any time and shall notify Customer by posting an updated
version of this Agreement on the Service. Customer is responsible
for regularly reviewing this Agreement. Continued use of the
Service after any such changes shall constitute Customer's
consent to such changes.
This
Agreement may not be assigned by Customer without the prior
written approval of Therapy Track but may be assigned by Therapy
Track to (i) a parent or subsidiary, (ii) an acquirer of assets,
or (iii) a successor by merger. Any purported assignment in
violation of this section shall be void.
With
respect to the U.S. Customers, this Agreement shall be governed
by Texas law and controlling United States federal law, without
regard to the choice or conflicts of law provisions of any
jurisdiction, and any disputes, actions, claims or causes
of action arising out of or in connection with this Agreement
or the Service shall be subject to the exclusive jurisdiction
of the state and federal courts located in Houston, Texas.
No text or information set forth on any other purchase order,
preprinted form or document (other than an Order Form, if
applicable) shall add to or vary the terms and conditions
of this Agreement. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid or unenforceable,
then such provision(s) shall be construed, as nearly as possible,
to reflect the intentions of the invalid or unenforceable
provision(s), with all other provisions remaining in full
force and effect. No joint venture, partnership, employment,
or agency relationship exists between Customer and Therapy
Track as a result of this agreement or use of the Service.
The failure of Therapy Track to enforce any right or provision
in this Agreement shall not constitute a waiver of such right
or provision unless acknowledged and agreed to by Therapy
Track in writing. This Agreement, together with any applicable
Order Form, comprises the entire agreement between Customer
and Therapy Track and supersedes all prior or contemporaneous
negotiations, discussions or agreements, whether written or
oral, between the parties regarding the subject matter contained
herein.
If you have questions regarding this
Agreement or wish to obtain additional information, contact
us at: Therapy
Track, 5100 Westheimer, Suite 200 Houston, TX 77098 Email: support@therapytrack.com
Phone: 713-527-0464 Fax: 713-527-0453
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