Terms of Service
Peak Response Inc. | Last updated December 2020
BY CLICKING ON “I AGREE”, EXECUTION AND DELIVERY OF A SERVICE ORDER AND AGREEMENT WITH PEAK RESPONSE INC. OR OTHERWISE DOWNLOADING, ACCESSING AND/OR USING ANY OF THE “PEAK RESPONSE SOFTWARE SERVICES” (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE OF THE Peak Response SOFTWARE SERVICES (THE “TERMS OF SERVICE”). IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, CLICK “I DON’T AGREE” AND DO NOT ACCESS OR USE ANY OF THE PEAK RESPONSE SOFTWARE SERVICES.
These Terms of Service, together with the attachments referred to herein as well as, for “Healthcare Provider Users” (as defined below), your Service Order and other attachments referred to therein if you have executed and delivered a Service Order with Peak Response Inc., and any other documents expressly incorporated herein by reference constitute the agreement (collectively, the “Agreement”) governing use of Peak Response Software Services entered into by and between Peak Response Inc. a Delaware Public Benefit Corporation, (hereinafter referred to as “Peak Response“)” and the applicable individual user and, for Healthcare Provider Users, the healthcare provider entity on whose behalf this Agreement is entered for the access and/or use of the Peak Response Software Services (hereinafter referred to as “You” or “User”), effective as of the earlier of Your registration, downloading of a Peak Response Software application, first use of Peak Response Software Services, or execution of a Service Order (the “Effective Date”).
You represent and warrant that you are over the age of 18 and have the capacity and authority to bind yourself to the terms of this Agreement and agree to be bound by the terms of this Agreement. If you access and/or or use the Peak Response Software Services on behalf of an entity, you represent and warrant that you have legal authority to bind such entity to this Agreement, and in such event the terms “you” and “your” also refer to such entity, except that if you do not have actual legal authority to bind such entity, you are and shall be personally bound and liable under these Terms of Service and you agree to indemnify Peak Response with respect to any claims, losses, expenses (including, without limitation, legal expenses), damages or other liability (collectively, “Claims”) arising or resulting therefrom. Peak Response shall not have any liability for any Claims arising or resulting from reliance on any representation, warranty, agreement, instruction, notice or communication received from you whether on your own behalf or on behalf of such entity.
1. USE OF THE SERVICES.
1.1. Peak Response Software Services. “Peak Response Software Services” means the Peak Response products and services that You obtain from Peak Response, and related websites, services and the Peak Response mobile software applications or other software provided by Peak Response, including without limitation, any software as a service or any professional services, in which these Terms of Service are posted or referenced. “Users” include both healthcare providers and/or healthcare facilities (collectively, “Healthcare Provider Users”) and their patients who are authorized to use Peak Response patient interface features of the Peak Response Software Services to communicate with such Healthcare Provider Users (“Healthcare Provider Patient Users”). References to “Users” herein include both Healthcare Provider Users and Healthcare Provider Patient Users.
1.2. Use by Healthcare Provider Users: Subject to payment of the applicable subscription, license and/or other fees (if any) and User’s full and ongoing compliance with the terms and conditions of this Agreement, Peak Response grants to Healthcare Provider Users limited, revocable, non-exclusive, non-transferable, non-sublicensable authorization for such Healthcare Provider User’s authorized user(s) to access and use the Peak Response Software Services within the scope of the Peak Response Software Services as specified in the applicable Service Order solely for their own medical practice operational use. To the extent that Peak Response makes the Peak Response Software Services available for direct integration with Healthcare Provider User’s web properties, Peak Response grants to such Healthcare Provider User a personal, limited, revocable, non-transferable, non-sublicensable right to such integration without modification into those web properties that are owned or controlled by such Healthcare Provider User solely for such purpose. Additional Peak Response Software Services and Locations may be added by contacting Peak Response regarding same, subject to the parties executing additional Service Orders and payment of the applicable additional fees and charges for same.
1.3. Use by Healthcare Provider Patient Users: Subject to User’s full and ongoing compliance with the terms and conditions of this Agreement, Healthcare Provider Patient Users that download a Peak Response mobile app and/or register to use the Peak Response Software Services patient interface features are granted a limited, revocable, non-exclusive, non-transferable, non-sublicensable authorization to access and use the Peak Response mobile app and the patient interface features of the Peak Response Software Services included in the Service subscribed for by the Healthcare Provider Patient User’s applicable Healthcare Provider User solely to communicate and interact with such Healthcare Provider User via the Peak Response Software Services.
1.4. User Responsibilities. User shall not allow any unauthorized access to or use of the Peak Response Software Services (including, without limitation, by maintaining the confidentiality of all usernames, passwords, API keys, and similar access credentials), and User will be solely liable to Peak Response for any and all activity or use of the Peak Response Software Services. User will notify Peak Response promptly of any unauthorized access or use. User will use the Peak Response Software Services only in accordance with the terms of this Agreement, the user guide made available by Peak Response (as may be amended from time to time by Peak Response), applicable privacy policies, applicable laws, government regulations, and third party contracts, including without limitation, any and all laws, regulations, and obligations relating to licensed medical services, privacy, publication, consumer protection, advertising, and industry self-regulatory guidelines or similar industry agreements or arrangements. User shall not (i) sell, resell, rent or lease the Peak Response Software Services, or make the Peak Response Software Services available to any third party on a service bureau basis, (ii) use the Peak Response Software Services to store or transmit malicious code, (iii) interfere with or disrupt the integrity or performance of the Peak Response Software Services or third-party data contained therein, or (iv) attempt to gain unauthorized access to the Peak Response Software Services or their related systems or networks or any other Users’ account or data. User is responsible for moderating and controlling the content it provides or displays as part of the Peak Response Software Services. User will maintain industry standard organizational and technical security safeguards for end user data accessed or collected by User through the Peak Response Software Services. If User requires the use of proprietary assets (e.g. fonts, images, videos, etc.), User will provide Peak Response with an appropriate license for such proprietary asset, or alternatively Peak Response will directly procure a license for such proprietary asset and invoice User (at cost) for such license. Peak Response EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY USER CONTENT, OR ANY COMPLIANCE WITH LAWS OR REGULATIONS GOVERNING HEALTH CARE OR HEALTH PROVIDERS. THE CONTENT, WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM Peak Response, IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. USER’S USE OF THE CONTENT IS SOLELY AT USER’S OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, DENTISTRY, NURSING, OR OTHER PROFESSIONAL HEALTH CARE ADVICE OF Peak Response, OR THE PROVISION OF MEDICAL CARE BY Peak Response. USER SHALL NOT USE ANY OF THE Peak Response SOFTWARE SERVICES FOR PURPOSES OF MAKING EMERGENCY COMMUNICATIONS.
1.5. Usage Limitations. The Peak Response Software Services may be subject to other limitations in Your Service Order and/or other documentation and such limitations shall be deemed to be incorporated by reference into and made a part of this Agreement. User will abide by any such limitations and User will not attempt to exceed or circumvent such limitations. If User exceeds, or Peak Response reasonably believes that User has circumvented any limitations, then User’s ability to use the Peak Response Software Services may be temporarily or permanently blocked or suspended and User may be subject to overage charges.
1.6. Support Services. If User purchased the Peak Response Software Services from Peak Response, Peak Response will provide basic support services to User, to address reported incidents of the Peak Response Software Services not performing materially in accordance with applicable specifications, when used by User in accordance with this Agreement and all applicable documentation in accordance with Peak Response’s standard support procedures.
1.7. Free/Trial Services. From time to time, Peak Response may make widgets, apps or other features or services available to User on a trial or pilot basis or otherwise at no charge (collectively, “Free/Trial Services”). User may choose to use such Free/Trial Services or not in its sole discretion. Free/Trial Services are intended for convenience and/or evaluation purposes. Support services are not provided for Free/Trial Services except as otherwise determined by Peak Response in its sole and absolute discretion. Free/Trial Services may be subject to additional terms, and are provided “AS-IS” with no warranties and all restrictions, reservations of rights, disclaimers of warranties, limitations of liability, confidentiality obligations, as well as User obligations concerning the Services and other non-subscription or support-related terms contained herein shall apply equally to User’s use of Free/Trial Services, except that Peak Response shall have the right to terminate User’s use of any Free/Trial Services at any time with or without advance notice without liability or obligation of any kind. User agrees that Peak Response will have no liability for any harm or damage arising out of or in connection with any Free/Trial Services.
1.8. Peak Response Mobile App and other Software. Peak Response mobile apps and/or other software that is downloaded or used by User may only be used by the individual who registered their account for such individual’s own use and not to provide outsourcer or service bureau services to third parties. You may not permit use of any such software, or any portion thereof, by another party without Peak Response’s prior written consent. Peak Response (and/or its licensors) retain all right, title and interest, including all intellectual property rights, in such software. You agree not to rent, lease, loan, sell or distribute any such software in any manner. You further agree not to use any such software in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, or overburden, corrupt or disable a third party’s systems, or obtain unauthorized access to any third party system or data. You agree that you will not send false or misleading information via such software. You will ensure that all proprietary notices displayed on such software will not be removed or modified. All Peak Response software is confidential and proprietary information of Peak Response and its licensors, and you agree to take adequate steps to protect such software from unauthorized disclosure or use. You represent and warrant to Peak Response that you will not download, install, access, or use such software where prohibited. You shall not use or otherwise export or re-export such software except as authorized by United States law and the laws of the jurisdiction in which such software was obtained. In particular, but without limitation, such software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using such software, you represent and warrant that you are not located in any such country or on any such list. Peak Response software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Copyright © 2021 Peak Response, Inc. and/or its affiliates or licensors. Such software and all copies thereof are licensed, not sold.
1.9. Fees and Payment. Healthcare Provider Users shall pay the applicable implementation, subscription and other fees and charges specified in the User’s Service Order as a condition to access and use of the Peak Response Software Services in accordance with the payment terms set forth in the Service Order. Fees for any additional products or services not specified in the applicable Service Order shall be invoiced by Peak Response to the applicable User and are due and payable no later than thirty (30) days from the date of invoice. Fee rates are subject to change by Peak Response by providing notice thereof to Users not less than ninety (90) days in advance of such changes taking effect. Any failure by User to timely pay applicable fees on or before the applicable due date shall constitute a material breach of this Agreement. Amounts not paid when due shall bear interest at the rate of one and one half percent (1 1/2%) per month or the maximum legal rate, whichever is less, until paid in full (together with any accrued interest). All fees are nonrefundable except as otherwise agreed to by Peak Response in writing.
1.10. Taxes. If any federal, state, local or foreign sales, use, property, value-added, excise or gross receipts taxes or any other taxes of any kind (other than Peak Response’s income taxes) are imposed or are otherwise payable with respect to any access to or use of the Peak Response Software Services or any license, software, hardware or other goods or implementation, support, maintenance or other services provided in this Agreement, then such taxes shall be billed to and paid by User.
1.11. Additional Peak Response Services and/or Services Locations. Healthcare Provider Users may purchase additional Peak Response Software Services and/or add Locations for use of the Peak Response Software Services under the terms of this Agreement at then current pricing or such other pricing as may be mutually agreed to by Peak Response and the Healthcare Provider User by contacting Peak Response and completing a separate Service Order for same.
1.12. Electronic Execution. The words “execution,” “signed,” “signature,” and words of similar import in this agreement shall be deemed to include electronic and digital signatures and the keeping of records in electronic form, each of which shall be of the same effect, validity, admissibility, and enforceability as manually executed signatures and paper-based recordkeeping systems, to the extent and as provided for under applicable law.
2. THIRD PARTY SERVICES.
2.1. The Peak Response Software Services may contain features designed to interoperate with third party applications, products or services (such as cloud-based services, web platforms, storage, and analytical services (“Third Party Services”). To use such features, User may be required to obtain access to such Third Party Services, or Peak Response may be required to obtain access to such Third Party Services on behalf of User, from the providers of such Third Party Services and User agrees to the terms and conditions on which such third party provider offers such Third Party Services. If User chooses to use such features and Peak Response is required to obtain access to Third Party Services on behalf of User, User authorizes Peak Response to access the applicable Third Party Services on User’s behalf and obtain, access, store, and use the data made available to Peak Response by the Third Party Services in accordance with this Agreement. User is solely responsible for compliance with the terms and conditions applicable to any Third Party Services accessed by or on behalf of User in connection with the Peak Response Software Services and will indemnify Peak Response from any and all harm, damages, costs, and expenses incurred by Peak Response in connection with a breach of the foregoing. Peak Response shall not be responsible for any disclosure, modification or deletion of data resulting from any such access to such Third Party Services and their providers. If the provider of any such Third Party Service ceases to make the application available for interoperation with the corresponding feature of the Peak Response Software Services on reasonable terms, Peak Response may cease providing such features without entitling User to any refund, credit, or other compensation. Any acquisition or use of Third Party Services and any exchange of information between an end user and any third party is directly between the end users and the applicable third party, and any interaction between User and end users is solely between User and the end user. Peak Response EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY END USER INTERACTIONS WITH THE Peak Response SOFTWARE SERVICES OR ANY THIRD PARTY SERVICES.
3. PROPRIETARY RIGHTS.
3.1. Reservation of Rights in Peak Response Software Services. Peak Response reserves all right, title and interest in and to the Peak Response Software Services, including all related intellectual property rights. No rights are granted to User other than as expressly set forth herein, whether by implication, estoppel, or otherwise. All enhancements, modifications, and derivative works made to the Peak Response Software Services (collectively, the “Derivatives”), and all intellectual property rights therein, shall be owned by Peak Response, whether or not such Derivatives are made at User’s request or instruction, with the exception of any electronic data or information submitted, provided, or made available to Peak Response by or on behalf of User to the Peak Response Software Services (“User Data”) contained in the Derivatives which shall continue to be owned by User. User hereby irrevocably assigns to Peak Response all right, title and interest in and to the Derivatives, including all intellectual property rights therein that may insure to User or that User is deemed to obtain pursuant to this Agreement.
3.2. Confidentiality; Healthcare Law Compliance; Use of Non-Personally Identifiable Data. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Users acknowledge and agree that the Peak Response Software Services and their software, design, functionality and features constitute trade secrets within the Confidential Information owned by Peak Response, in addition to other business, proprietary and/or otherwise non-public information pertaining to Peak Response. User health/healthcare information and other non-public information that is stored on Peak Response servers is considered to be User Confidential Information. A party’s Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act of omission of the other party; or (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; (d) is independently developed by the other party; or (e) is required to be disclosed by applicable laws or regulations or by an order of a court of competent jurisdiction or other legal process, provided that in the event of a compelled disclosure the party required to make such disclosure shall if reasonably practicable and permitted under applicable law, provide notice to the other party as early as practicable prior to such disclosure in order to enable the other party to contest and/or attempt to limit the extent of such disclosure. The parties agree, both during the term of this Agreement and for a period of two (2) years after termination of this Agreement, to hold each other’s Confidential Information in confidence, except that with respect to information constituting “trade secrets” as defined under the Uniform Trade Secrets Act the obligations hereunder shall continue for as long as such information continues to constitute trade secrets. The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the use or provision of the Peak Response Software Services, as applicable, and the implementation of this Agreement. Each party agrees to take reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement. Notwithstanding the foregoing, Users shall not, at any time whether while this Agreement is in effect or thereafter permit anyone (other than Healthcare Provider Users’ own employees and its Healthcare Provider Patient Users, or Peak Response) to access or use the Peak Response Software Services. Each party shall comply with all applicable laws, rules and regulations in performing its obligations hereunder, including the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), and the rules promulgated thereunder (including the Standards for Privacy of Individually Identifiable Health Information). Healthcare Provider Users and Peak Response agree to enter into a customary HIPAA Business Associate Agreement upon entering into this Agreement. Notwithstanding any other provision in this Agreement, Peak Response own and have the right to gather, retrieve, compile, store, retain, use, sell, license, transfer or otherwise exploit all information that is not “Protected Health Information” as defined under 45 C.F.R. Section 164.501 or other “personally identifiable data” relating to use of the Peak Response Software Services for research, quality control, product development and refinement, commercial and other purposes as determined by Peak Response without a duty to account to or obtain consent from Users or any third party. As used herein, “non-personally identifiable data” is any data element or collection of data elements that cannot be associated with a specific individual, whether by itself or in combination with other information. Peak Response may use such information as may be reasonably necessary in connection with performing, providing, developing, enhancing, supporting, and maintaining the Peak Response Software Services; and (ii) in connection with the creation of any information or data derived from use of the Peak Response Software Services (including, without limitation, metrics and analytics related to such use), which is not specific to a person, does not include Protected Health Information or personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person, including as may be required to develop, deliver and provide ongoing innovation to the Peak Response Software Services.
3.3. Suggestions. User may, but is not obligated to, provide suggestions, enhancement requests, recommendations or other feedback provided by User (“Suggestions“). User hereby grants Peak Response a royalty-free, worldwide, irrevocable, sublicensable, transferable, perpetual license to use, disclose, reproduce, license, distribute and exploit such Suggestions, and incorporate Suggestions into the Peak Response Software Services and its other services, products, technologies, documentation or other development with no obligation to pay, attribute, license or to make available to, User or any other person or entity.
4. LIMITED WARRANTY; DISCLAIMER.
4.1. Limited Warranty. Each party represents and warrants to the other party that it has validly entered into this Agreement and has the legal power to do so, and that it will comply with all applicable laws and regulations in connection with its performance. User’s sole remedy for performance issues with respect to Peak Response Software Services shall be any support services Peak Response is obligated to provide in accordance with this Agreement.
4.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Peak Response, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, MEMBERS, OWNERS, EMPLOYEES, AGENTS, CONTRACTORS AND OTHER REPRESENTATIVES (THE “Peak Response PARTIES”) MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH OF THE Peak Response PARTIES SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION: THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE Peak Response SOFTWARE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION THAT THE USE OF THE Peak Response SOFTWARE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE; OR WITH RESPECT TO ANY USER DATA OR OTHER THIRD PARTY CONTENT THAT MAY BE ACCESSED, PROVIDED, OR MADE AVAILABLE; OR ANY THIRD PARTY SERVICES ACCESSED OR USED, IN CONNECTION WITH THE Peak Response SOFTWARE SERVICES; AND HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT THERETO. Peak Response WILL NOT BE LIABLE TO USER FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF Peak Response WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT STRICT LIABILITY OR OTHERWISE.
4.3. Services. THE Peak Response PARTIES DO NOT WARRANT THAT THE Peak Response SOFTWARE SERVICES WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE Peak Response SOFTWARE SERVICES WILL BE COMPATIBLE WITH ANY OTHER SOFTWARE, HARDWARE, OR OTHER MATERIALS, THAT USER CONTENT CAN OR MAY BE DISPLAYED BY USER, OR THAT THE Peak Response SOFTWARE SERVICES OR THE SERVERS THAT MAKE THE Peak Response SOFTWARE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND THE Peak Response PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT THERETO. USER UNDERSTANDS AND AGREES THAT IF USER USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS ANY THIRD PARTY SERVICES OR CONTENT OR DATA THEREIN, IT IS AT USER’S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE USE OF Peak Response SOFTWARE SERVICES. Peak Response HAS NO CONTROL OVER ANY THIRD PARTY SERVICES, AND THEREFORE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, LEGALITY, NATURE, AVAILABILITY, OR RELIABILITY OF THIRD PARTY SERVICES AVAILABLE IN CONNECTION WITH THE Peak Response SOFTWARE SERVICES. Peak Response PROVIDES ACCESS TO THIRD PARTY SERVICES TO USER ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK, REFERRAL, OR FEATURES ON THE Peak Response SERVICE TO THIRD PARTY SERVICES DOES NOT IMPLY Peak Response AFFILIATION, ENDORSEMENT, OR ADOPTION OF THE THIRD PARTY SERVICE OR ANY CONTENT OR DATA THEREIN. ACCESS AND USE OF THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION THE CONTENT, MATERIAL, PRODUCTS, AND SERVICES AVAILABLE ON OR THROUGH THIRD PARTY SERVICES AND IS SOLELY AT USER’S OWN RISK. USER IS SOLELY RESPONSIBLE FOR, AND THE Peak Response PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT TO, THE USE OR DISPLAY OF ANY HEALTH RELATED DATA OR USER DATA, AND COMPLIANCE WITH ANY REGULATORY OBLIGATIONS RELATED THERETO.
User shall indemnify, defend and hold the Peak Response Parties harmless from and against any Claim(s) incurred or suffered by any of them with respect to any breach of any of User’s representations, warranties or obligations hereunder or any act or omission by User or any of its authorized users or other personnel that results in a Claim. The Peak Response Parties shall have the right to engage their own counsel in connection with such matters and shall notify User promptly in writing of any such claim or suit against any of the Peak Response Parties.
5. LIMITATION OF LIABILITY.
5.1. Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE Peak Response PARTIES HAVE ANY LIABILITY TO USER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING AS A RESULT OF STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, RELATING TO THIS AGREEMENT OR THE Peak Response SOFTWARE SERVICES, WHETHER OR NOT THE Peak Response PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
5.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY Peak Response PARTIES’ AGGREGATE TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT OR RELATING TO THE Peak Response SOFTWARE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY RECEIVED BY Peak Response WITH RESPECT TO USER’S SUBSCRIPTION FOR THE Peak Response SOFTWARE SERVICES GIVING RISE TO THE APPLICABLE CLAIM DURING THE ONE (1) MONTH PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF USER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
6. TERM AND TERMINATION.
6.1. Term of Agreement. This Agreement commences on the Effective Date and continues until the User’s subscription for Peak Response Software Services has expired or is terminated.
6.2. Termination. Either party will have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of User’s failure to pay fees, which must be cured within fifteen (15) days after receipt of written notice from Peak Response. Peak Response may also suspend User’s access to or use of the Peak Response Software Services in the event of nonpayment or other breach until such time is payment in full has been made or such other breach has been fully cured. Either party may also terminate this Agreement upon providing written notice to the other party if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. Free/Trial Services are subject to suspension or termination at any time with or without advance notice by Peak Response. Peak Response and/or the applicable User may elect to not renew this Agreement by providing written notice of non-renewal to the other party not less than thirty (30) days prior to the end of the applicable subscription period.
6.3. Effect of Termination/Nonrenewal. Upon the effective date of termination or expiration of this Agreement: (a) User shall cease all use of the Peak Response Software Services, and Peak Response may immediately cease providing same; (b) any and all payment obligations of User under this Agreement will become due immediately; (c) within thirty (30) days after such expiration or termination, each party shall return all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirements. Except in the event that this Agreement is terminated by Peak Response based on a breach of this Agreement by Client, if requested by a Healthcare Provider User, Peak Response shall use reasonable efforts to assist such Healthcare Provider User in transferring such User’s data to User or another service provider (such services to be subject to Peak Response’s customary fees on a time and materials basis unless otherwise set forth in a Service Order. Users of Peak Response mobile apps or other downloadable software shall permanently remove, delete, erase and otherwise eliminate such software from all systems and devices in such User’s possession or control.
6.4. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: the first three paragraphs of this Agreement, Sections 1.2, 2, 3, 4, 5, 6, 7.2-7.4, 8 and 9.
7. MODIFICATIONS TO THE AGREEMENT.
7.1. Peak Response reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time by posting the revised Agreement on its website or otherwise providing notice to User. User should check this Agreement online at the link referred to above periodically for changes. In the event that a change to this Agreement materially modifies User’s rights or obligations, Peak Response will make reasonable efforts to notify User of such change. Peak Response may provide notice through a pop-up or banner within the Peak Response Software Services, by sending an email to any address User may have used to register for access, or through other similar mechanism. Additionally, if the changed Agreement materially modifies User’s rights or obligations, Peak Response may require User to provide consent by accepting the changed Agreement. If Peak Response requires User’s acceptance of the changed Agreement, changes are effective only after User’s acceptance. If User does not accept the changed Agreement, Peak Response may terminate User’s access to and use of the Peak Response Software Services. All other changes are effective upon the earlier of User’s acceptance of the modified Agreement, User’s use of the Peak Response Software Services with actual knowledge of the change, or thirty (30) days following publication of the modified Agreement. Disputes arising under this Agreement will be resolved in accordance with the Agreement in effect at the time the dispute arose.
8. GENERAL PROVISIONS.
8.1. Relationship. The parties are independent contractors, and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship. Neither party shall take any action or permit any action to be taken on its behalf which purports to be done on behalf of or in the name of the other party and shall have no power or authority to bind the other party to assume or create any obligation or responsibility express or implied on the other party’s behalf or in its name, nor shall such party represent to anyone that it has such power or authority.
8.2. Notices. All notices under this Agreement shall be in writing and shall be delivered, for notices to User, to the address set forth in User’s registration information as provided for use of the Peak Response Software Services, and for notices to Peak Response, firstname.lastname@example.org.
8.3. Waiver and Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be interpreted to affect the original intent to the fullest extent possible, if at all, and the remaining provisions of this Agreement shall remain in full force and effect.
8.4. Assignment. Users may not assign any of its rights or obligations hereunder without the prior express written consent of Peak Response. Peak Response may assign this Agreement together with all rights and obligations hereunder, without restriction, including to an affiliate or to a successor entity resulting from a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
8.5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without application of conflicts of laws rules or principles. Any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for injunctive relief or other equitable remedies) will be submitted at the request of either party to binding arbitration. Arbitration will be conducted in San Francisco, California. Any claims for injunctive or other equitable relief shall be brought and heard in the state or federal courts located in San Francisco, California, and User consents to such venue and personal jurisdiction therein for any such proceedings. YOU HEREBY IRREVOCABLY WAIVE THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST Peak Response INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not be valid unless given in writing signed by the party giving the waiver and shall not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. As used herein, “affiliate” means any person or entity directly or indirectly controlling or having the power to control, or controlled by or being under common control with another person or entity. For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of such party, whether through ownership or stock or other securities, by contract or otherwise. Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists. A printed version of this Agreement and of any notice given in electronic form shall be admissible in any legal proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. In the event of any conflict or inconsistency between these Terms of Service and other terms contained in a Service Order, the terms in the Service Order shall control with respect to such Service Order.
8.6. Export Control. User agrees to comply fully with all relevant regulations of the United States Department of Commerce and with the United States Export Administration Act to assure that the Peak Response Software Services or any software provided by Peak Response in connection therewith is not exported in violation of United States law.
8.7 Marketing References. User acknowledges and agrees that Peak Response may use User’s name and logo in Peak Response’s advertising marketing and promotional materials, including, but not limited to, in connection with sales presentations and on Peak Response’s website.
8.8 Force Majeure. Except for User’s payment obligations hereunder, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, storms or other weather or natural events, embargo, riot, sabotage, terrorism, epidemic, pandemic, labor shortage or dispute or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, governmental act or failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
8.9. Integration. This Agreement as may be modified from time to time as set forth herein, as well as other documents or additional terms referenced herein, and in your Service Order and the documents incorporated by reference therein if you executed and delivered a Service Order with Peak Response, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement, including without limitation, any foreign language translation of this Agreement.