PLEASE READ ALL OF THE FOLLOWING TERMS CAREFULLY AS THEY CONTAIN INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Effective July 20, 2023
This Terms of Service Agreement (the “Agreement”) is made between HIPAAtrek, Inc. (“HIPAAtrek”) and you as customer (the “Customer”) as part of your engagement of HIPAAtrek to provide consultive services defined in the Statement of Work between you and HIPAAtrek (the “Services”).
Acceptance of Terms.
- By Customer executing the Statement of Work and engaging HIPAAtrek, Customer acknowledges and agrees that you have READ, UNDERSTAND, ACCEPT, and AGREE to be bound by these terms and conditions. Should Customer NOT accept these terms and conditions, Customer must neither access nor otherwise use any part of the Services.
- Customer’s purchase of any goods or services from HIPAAtrek will be set forth in one or more Statements of Work (“SOWs”) into which these Terms and Conditions are incorporated by reference.
- Disclaimer of Warranties. To the fullest extent permitted by law:
- a. THE SERVICES AND INFORMATION AND MATERIALS PROVIDED THEREWITH ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND HIPAATREK HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE DUE TO COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. TO THE EXTENT PERMITTED BY LAW, HIPAATREK EXPRESSLY DISCLAIMS ANY REPRESENTATION THAT: (I) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; ( (III) ANY INFORMATION OBTAINED THROUGH OR FROM THE SERVICES PROVIDED WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES PROVIDED WILL MEET EXPECTATIONS; (V) ANY CUSTOMER-PROVIDED INFORMATION WILL NOT BE DISCLOSED TO THIRD-PARTIES; (VI) ANY DATA OR SOFTWARE ERRORS WILL BE CORRECTED; (VII) (IX) THE OPERATION OF ANY THIRD-PARTY OR SOFTWARE THEREOF NECESSARY FORSERVICES PERFORMED; No data, ADVICE, or information obtained from HIPAAtrek , its affiliates, subsidiaries, officers, directors, employees, agents, licensors, successors, or assigns (“HIPAAtrek Parties”) shall create any warranty. CUSTOMER WAIVES ANY STATUTORY RIGHTS WITH RESPECT TO IMPLIED WARRANTIES.
- b. Customer understands and agrees that HIPAAtrek is not a law firm or medical services provider. Customer is encouraged to seek counsel regarding its potential liability under HIPAA or related privacy laws. HIPAATREK CANNOT AND DOES NOT PROVIDE ANY TYPE OF ADVICE, EXPLANATION, OPINION OR RECOMMENDATION ABOUT CUSTOMER’s POSSIBLE LEGAL RIGHTS, REMEDIES, DEFENSES, OR ALTERNATIVES. COMMUNICATIONS BETWEEN CUSTOMER AND HIPAATREK ARE NOT PROTECTED BY ANY ATTORNEY-CLIENT PRIVILEGE OR AS WORK PRODUCT.
- c. Paid Services.
- 1. General. To the extent that Customer has purchased the Services for a fee (“Paid Services”), Customer authorizes Company and/or its designated payment processors to store Customer’s payment information and other related information. Fees for Paid Services will be as set forth in the Statement of Work. Customer also agrees to pay the applicable fees for the Paid Servicesas they become due, and to reimburse Company for all collection costs and interest for any overdue amounts. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Paid Services except: (i) as required by applicable law; and (ii) at Company’s sole and absolute discretion. Fees for the Paid Services may be payable in advance, in arrears, per usage, or as otherwise described when you initially purchase the Paid Services. Except as otherwise described in this Section 4, all prices for Paid Services are subject to change without notice. Customer agrees that Customer’s payment of fees hereunder is not contingent on the delivery of any result for such Services.
- 2. Taxes. HIPAAtrek’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If HIPAAtrek has the legal obligation to pay or collect Taxes for which Customer is responsible, HIPAAtrek will invoice Customer and Customer will pay that amount unless Customer provides HIPAAtrek with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, HIPAAtrek is solely responsible for taxes assessable against HIPAAtrek based on HIPAAtrek’s income, property and employees.
- 3. Payment Method.
- a. Company may, from time to time, offer various payment methods, including without limitation payment by credit card, by debit card, by check, by certain payment providers. Customer authorizes Company to charge Customer for Paid Services through any payment method(s) Customer selects when purchasing the Paid Services (the “Payment Method”) and Customer agrees to make payment using such Payment Method(s).
- b. If the Statement of Work specifies that payment will be by a method other than a credit card, HIPAAtrek will invoice Customer in advance and otherwise in accordance with the relevant Statement of Work. Unless otherwise stated in the Statement of Work, invoiced charges are due upon receipt from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to HIPAAtrek and notifying HIPAAtrek of any changes to such information.
- 4. Current Billing Information Required. Customer agrees to provide current, complete, and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number, or credit card expiration date) as necessary for the processing of all payments that are due to Company. Customer agrees to promptly notify Company if Customer’s Payment Method is canceled (for example, due to loss or theft) or if Customer becomes aware of a potential breach of security related to Customer’s Payment Method. If Customer fails to provide any of the foregoing information, Customer acknowledges that Customer’s current Payment Method may continue to be charged for Paid Services and that Customer will remain responsible for all such charges.
- 5. Collections. If any invoiced amount is not received by HIPAAtrek by the due date, then without limiting HIPAAtrek’s rights or remedies hereunder: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
- Ownership. Customer acknowledges and agrees that the Services and any patents, copyrights, trade secrets, moral rights, trademarks, know-how, or any related or other rights or interests or other intangible assets recognized under any laws, regulations, or international conventions, in any country or jurisdiction in the world (collectively, “Intellectual Property Rights”) are sole property of HIPAAtrek, its wholly-owned subsidiaries, affiliates, licensors, suppliers, or other third parties.
Term and Termination.
This Agreement remains effective until terminated consistent with the engagement for Services..
To the fullest extent permitted by law:
- Customer use of the Services are at his/her own risk and is singularly responsible for any loss, damage, or costs incurred during such activity. The HIPAAtrek Parties shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, under any legal theory, arising from or relating to: (i) the Services; (ii) the acts, omissions, or conduct of any CUSTOMER or third-party, whether online or offline; (iii) any Services content; (iv) any goods or services acquired as a result of any information obtained or transactions entered into through the Services; (v) any use of goods or services made available on any internet resource or webpage linked to the Services; (vi) technical malfunctions of any telephone system (e.g., IN case OF EMERGENCY SERVICES), cellular network, cable system, computer equipment, server, provider, or software; (vii) injury or damage to Customer’s computer or equipment resulting from the Services including, but not limited to, web page viewing, file downloading or streaming, server use or access, or following Services links; (viii) any incorrect or inaccurate content posted on or received from the Services, regardless of the cause of such inaccuracy. The HIPAAtrek Parties shall not be responsible for any conduct of any Customer of the Services; (x) any error, omission, interruption, deletion, defect, operational delay, communication line failure, or theft, breach, destruction, or alteration of Customer’s communication; or (x) ANY CLINICAL OR PATIENT CARE DECISION OR THE DELIVERY OR NON-DELIVERY OF PATIENT CARE SERVICES BY the Customer.
- Customer’s access or use of any third-party internet resource linked to or from the Services, or Customer’s use of goods or services from third-party internet resources linked to or from the Services, is made at Customer’s own risk. Customer hereby releases the HIPAAtrek Parties from any damages Customer suffers from Customer’s access to third-party resources, and Customer agrees not to make any claims against the HIPAAtrek Parties arising from any purchase or acquisition of goods and services made available through the Services or through third-party resources.
- Without limiting the foregoing, The HIPAAtrek Parties’ aggregate liability to Customer or any third-party, in any matter arising from or related to the Services or the Agreement, shall not exceed the sum of ONE HUNDRED dollars ($100.00).
- Occurrence. Customer agrees to defend the HIPAAtrek Parties to the fullest extent permitted by law, against any and all claims, demands and/or actions and indemnify and hold the HIPAAtrek Parties harmless from and against any and all losses, damages, costs and expenses, including reasonable attorney’s fees, (each a “Claim), regardless of whether such Claim is due to a HIPAAtrek Party’s active or passive negligence, arising out of or relating to: (i) any Customer breach of any provision of this Agreement and/or any representation or warranty identified herein; (ii) Customer’s use or misuse of the Services, including any data or information transmitted or received by Customer; (iii) any unacceptable use of the Services by Customer including, without limitation, any statement, data or content made, transmitted, or republished by Customer which is infringing or otherwise prohibited; (iv) any interactions with third-parties or products and services obtained thereform; and (v) any expenses HIPAAtrek incurs in enforcing this Section including, without limitation, reasonable attorney’s fees and costs.
- Procedures. HIPAAtrek will promptly notify Customer of any claim or action with respect to any claim for indemnification hereunder, and Customer will undertake the defense or settlement and all related costs and expenses of any claim or action for which it has an indemnification obligation. Customer will have the right to settle or compromise any action to which its indemnification is applicable, except that Customer may not agree to any settlement without the prior written consent of HIPAAtrek if such settlement would cause HIPAAtrek to undertake any action, assume any liability, pay any monies, or acknowledge any wrongdoing or have a judgment entered against it. Notwithstanding the foregoing, HIPAAtrek will have the right to undertake the defense of any claim asserted against it at Customer’s expense in the event that: (i) Customer fails to assume the defense of such claim; (ii) HIPAAtrek reasonably determines that an adverse outcome could be material to HIPAAtrek’s business; (iii) there are conflicts between Customer’s and HIPAAtrek’s interests in such litigation; or (iv) HIPAAtrek reasonably believes that Customer does not have the financial resources needed to satisfy its indemnification obligation in the event of an adverse outcome.
Dispute Resolution Protocol.
- Controlling Law and Jurisdiction. This Agreement will be interpreted in accordance with the laws of the State of Minnesota and the United States of America, without regard to its conflict-of-law provisions. Customer and HIPAAtrek agree to submit to the personal jurisdiction of the state and federal courts located within St. Paul, Minnesota, for any actions involving actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, or Customer’s outstanding payment of fees due hereunder.
- Negotiations. In the event any dispute arises except those disputes the involving actual or threatened infringement, misappropriation, or violation of a party’s Intellectual Property Rights, Customer and HIPAAtrek agree to first attempt to negotiate the resolution any dispute, informally for at least thirty (30) days before initiating any arbitration or court proceeding.
- Other parties. Customer accepts that, as a corporation, HIPAAtrek has an interest in limiting the personal liability of its officers and employees. Customer agrees that it will not bring any claim personally against HIPAAtrek’s officers or employees in respect of any losses Customer suffers in connection with the Services. Without prejudice to the foregoing, Customer agrees that the limitations of warranties and liability set out in this Agreement will protect HIPAAtrek’s officers, employees, agents, subsidiaries, successors, assigns, and sub-contractors as well as HIPAAtrek. arising from or related to the Services or the Agreement, shall not exceed the sum of ONE HUNDRED dollars ($100.00).
- Binding Arbitration. All claims arising from use of the Services (except those disputes involving actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, or Customer’s outstanding payment of fees due hereunder) will be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. Customer understands that if either party elects to arbitrate, neither party will have the right to sue in court or have a jury trial. The arbitration will be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes both of which are available at the AAA website http://www.adr.org. The Parties will submit briefs of no more than 10 pages and the arbitration hearing will be limited to two (2) days maximum. The arbitrator must apply Minnesota law and any award may be challenged if the arbitrator fails to do so. Unless otherwise agreed by the Parties, arbitration will take place in St. Paul, Minnesota. Customer’s arbitration fees and Customer’s share of arbitrator compensation will be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If Customer’s claim for damages does not exceed $10,000, HIPAAtrek will pay Customer’s share of arbitration fees unless the arbitrator finds that either the substance of Customer’s claim or the relief sought was frivolous or brought for an improper purpose as determined pursuant to Federal Rule of Civil Procedure 11(b). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing. The Parties may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER. CUSTOMER AND HIPAATREK AGREE THAT ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN HIPAATREK AND CUSTOMER INDIVIDUALLY. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER AND HIPAATREK ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE CUSTOMER’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING.
WAIVER OF RIGHT TO JURY TRIAL. EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING THERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
- Limitation of Action. No action or proceeding shall lie or be maintained by Customer against the HIPAAtrek Parties, upon any claim, counterclaim, or cross-claim arising out of or based upon this Agreement, or by reason of any act or omission or any requirements relating to the giving of notices or information required hereunder, unless such action or proceeding shall be commenced within one (1) year of when the cause of action accrues, and otherwise such cause of action is permanently barred. Customer agrees to exclude, in its entirety, the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
- No Waiver. To the maximum extent permitted by applicable law: (i) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be discharged by a Party, in whole or in Part, by a waiver or renunciation of the claim or right unless in writing signed by such Party; (ii) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (iii) no notice to or demand on one Party will be deemed to be a waiver of any obligation of that Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
- Entire Agreement and Modification. This Agreement, along with a Statement of Work), constitutes the complete and exclusive statement of the agreement between the Parties with respect to the Services and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the Parties concerning the Services. This Agreement may be modified by HIPAAtrek and Customer may agree in writing.
- Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
The rights granted by HIPAAtrek herein are of a special, unique, and intellectual nature, which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated for in damages in an action at law. In addition, Customer acknowledges that during the course of accessing or using the Services, Customer will or may have access to HIPAAtrek’s proprietary information, including, without limitation, Platform code and related materials. Accordingly, the breach by Customer of the provisions of this Agreement concerning HIPAAtrek’s proprietary rights will cause HIPAAtrek irreparable injury and damage for which HIPAAtrek will be entitled, without posting any bond or security, to seek injunctive or other equitable relief. The granting of equitable relief will not be construed as a waiver of any other rights of HIPAAtrek in law or in equity. Customer agrees that the rights and remedies of Customer in the event of a breach of this Agreement by HIPAAtrek shall be limited to the right to recover damages, if any, in an action at law, and in no event shall Customer be entitled to terminate or rescind this Agreement or enjoin or restrain HIPAAtrek’s use or exploitation of the Submissions.
HIPAAtrek may assign any of its rights or delegate any of its obligations hereunder to any person or entity at any time without Customer’s consent. Customer may not assign any of its rights or delegate any of its obligations hereunder to any person or entity without the prior written consent of HIPAAtrek. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be construed to give any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement, except such rights as will inure to a successor or permitted assignee pursuant to this Section.
California Consumer Complaints.
Pursuant to Cal. Civ. Code. § 1789.3, Customer complaints or requests for further information may be sent to info@HIPAAtrek.com. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be reached at 1625 North Market Blvd., Suite N. 112 Sacramento, CA 95834 (800) 952-5210.
- Customer Representations and Warranties. Customer represents and warrants that: (i) it is not prevented from and has the legal right and authority to enter into this agreement; (ii) its performance and the rights granted to HIPAAtrek hereunder shall not conflict with or violate any law, commitment, or agreement it has to any other person or entity.
- Survival. The obligation of this Agreement except HIPAAtrek’s obligation to provide services shall survive the termination of this Agreement.
Terms of Service © 2023 HIPAAtrek Inc.