3H 4 RESPONDERS, LLC
(also, the “Company”)
TERMS OF SERVICE AND SOFTWARE LICENSE
(An agreement between you and the Company (this “Agreement”))
READ THIS AGREEMENT CAREFULLY. IT CONTAINS
DISCLAIMERS OF RIGHTS AND LIMITATIONS OF LIABILITY,
AS WELL AS TERMS AND CONDITIONS THAT CONTROL YOUR DOWNLOAD AND USE OF THE COMPANY’S MOBILE DEVICE SOFTWARE APPLICATION (the “Software”) AND YOUR USE OF THE SERVICES BEING PROVIDED BY THE COMPANY FROM TIME TO TIME IN CONNECTION WITH THE SOFTWARE AND THE SOAP NOTES THAT YOU CREATE USING THE SOFTWARE (the “Services”).
IMPORTANT HIPAA NOTICE:
The Software and the Services are intended for use under emergency conditions and prior to the time when an injured individual is under the care of a physician. Neither the Software nor the Services call for the entry, transmission or storage of “individually identifiable health information.” Neither the Software nor the Services are designed to transmit or store, in electronic form, “individually identifiable health information.” You may not, in using the Software or the Services, add any information (such as a full face or equivalent photograph) to any record that you may create so as to cause such record to constitute “individually identifiable health information.” See “Record Retention; SOAP Note Content” below.
IMPORTANT NOTICE REGARDING MEDICAL INFORMATION:
The content of any website made available to you as part of the Services (each a “Website”) and any information stored on or made available through a Website (including the contents of any SOAP Note) are for informational purposes only. Such content does not purport to provide medical advice and is not intended to be a substitute for professional medical advice, diagnosis, or treatment. YOU RELY ON SUCH CONTENT AND INFORMATION AT YOUR OWN RISK. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition, diagnosis or treatment.
If you do not agree to be bound by all of the provisions set forth below, including the disclaimers of rights and limitations of liability, you must terminate your registration for the Services and may not use any Website or the Software. If you do agree to be so bound, either tap “Sign Up” as indicated on your mobile device application or place a check in the box “Yes, I agree to the Terms of Service” when creating your account (see “Acceptance of this Agreement” below) and complete your registration and payment.
You are in the process of registering to become entitled to use the Software to create a SOAP note, store your SOAP note on your mobile device, upload your SOAP note to a remote computer maintaining a Website provided by the Company and email your SOAP note or a link to your SOAP note file on such remote computer to a healthcare provider or caregiver, who (in the case of an email link) will be entitled to download your SOAP note using the internet. In addition, your registration will entitle you, for one year, to maintain your SOAP Notes in an account that you have established on a Website (http://www.soapnoteapp.com), review and update your SOAP Notes through a Website and make your SOAP Notes available to authorized recipients. The Services include remote computers and other resources that are capable of receiving, storing and transmitting SOAP Notes created by you; the provision and maintenance of a Website (https://soapnoteapp.appspot.com) through which you may access an account created by you for the storage of your SOAP Notes (the “Records Website”); and the provision of software through which you may audit the maintenance and updating of your SOAP Notes. This Agreement applies to each Website, and is available on each Website for reference.
ACCEPTANCE OF THIS AGREEMENT. If you accept and agree to be bound by this Agreement (referred to on your mobile device and on each Website as the Terms of Service), you will be licensed to copy, install and use the Software and make use of the Services (including the Websites) for one year, in the manner described in this Agreement but subject to the terms and conditions of this Agreement. You will also be registering to use the Services by creating a user name and password, providing your email address and creating your individual account. BY ACCEPTING THE “TERMS OF SERVICE” AS PROVIDED ON YOUR MOBILE DEVICE APPLICATION OR ANY WEBSITE, YOU (1) ACKNOWLEDGE THAT YOU HAVE READ, AND UNDERSTAND, THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (2) YOU AGREE (ON YOUR OWN BEHALF AND ON BEHALF OF ANY ENTITY OR ORGANIZATION THAT YOU REPRESENT) TO BE NOW BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. You may not accept this Agreement if you lack the legal capacity or the legal right to act in the manner required by it. If you do not agree to be now bound by the terms and conditions of this Agreement, terminate your registration. If you terminate your registration or if you lack the legal capacity or the legal right so to act, your copying or use of the Software or the Services is not permitted, and your future use or copying of the Software may subject you to penalties under various copyright and other laws. To be able to access the Services, you must accurately maintain your account registration information at all times.
LICENSE RIGHTS AND LIMITATIONS. The license granted to you is a personal, non-exclusive, world-wide, fully paid up license, for a period of one year ending on the first anniversary of the date on which you accepted this Agreement, to copy, install and use the Software and to make use of the Services, all as described herein, on any mobile device belonging to you and through the appropriate Website. You may not install the Software on or transfer it to a device owned by any other person, copy it to any external media or sublicense or transfer it to any person; and you may not (1) modify, adapt, alter or translate the Software, or create any derivative work or compilation with or from it except in the creation of a SOAP Note; (2) use the Software or any Website except as permitted hereby; (3) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the Software or any Website; or (4) circumvent, or attempt to circumvent, any electronic protection measures in place to monitor or control access to the Software or any Website, to audit its use or to verify the accuracy of its performance. You may not remove, alter or obscure any copyright notice or any other proprietary notice that appears on the Software or any Website. If you become aware of any unauthorized use of your password or of your account, you must notify the Company immediately at customer.service@3H4.com.
RENEWAL OF YOUR LICENSE. The Company will provide you with a notice of renewal for the Software and the Services prior to the expiration of the license granted to you under this Agreement (a “License”). To renew your License (which will entitle you to the use of the Software and the Services as provided herein for another year), you will be obligated to register on the Website specified by the Company in the notice, complete the applicable forms and pay the license fee therefor. Failure to do so will result in the termination of your License and your rights under this Agreement without further notice.
REMOTE COMPUTER. The Software is designed to automatically upload your SOAP notes to a remote computer provided by the Company using the Internet. The automatic upload feature of the Software does not function when the Software is not running; DO NOT EXIT THE SOFTWARE BEFORE YOUR SOAP NOTE HAS BEEN UPLOADED. The automatic upload feature is not available in all countries. Please consult any Website to find out if the country in which you intend to use the Software (other than the United States) is served by the Company. The automatic upload feature of the Software also does not function if your mobile device is unable to establish a reliable connection to the internet or if the internet does not have a connection to the Records Website. If your device does not confirm that your SOAP Note has been successfully uploaded and it appears that the internet connection may be ineffective, you must seek another location from, or time at, which to upload your SOAP Note. The user name and password you selected is the sole means by which the remote computer controls access to your SOAP Note for the purpose of adding additional information. DO NOT SHARE YOUR USER NAME AND PASSWORD WITH OTHERS. Also, your SOAP Note will not be available to anyone remotely until you have clicked the “Sign Current Note” button after you have completed your SOAP Note. After you have clicked the “Sign Current Note” button, the information entered on your completed SOAP Note may be updated by subsequent entries, but whatever appeared in your original SOAP Note will always be in the records of your SOAP Note. If there is an error in your SOAP Note or if you have decided to provide subsequent information, you must access your SOAP Note using your user name and password, and make the necessary additions to your SOAP Note. By sending a link to your uploaded SOAP note to a third party, you are authorizing such party to implement the link and download a copy of your SOAP Note. The Company will have no control over the use of the link that you send, but your link will expire after seven days and the Records Website will limit the number of downloads that are available for your SOAP Note. Do not send a link to your SOAP Note to any person who is not a health care provider or emergency first responder with a need to see the information in your SOAP Note to assist your injured person. You may not interfere in any manner with the operation of the remote computer provided by the Company, or attempt to gain access to such computer or any files stored on such computer, except through the use of the Software or any Website as designed and for the purposes for which the Software or such Website is intended to be used.
DISCLAIMER. THE SOFTWARE AND THE SERVICES, INCLUDING USE OF ANY WEBSITE, ANY REMOTE COMPUTER AND ANY COMMUNICATIONS EQUIPMENT USED IN CONNECTION WITH ANY WEBSITE, ARE PROVIDED BY "AS IS" AND "AS AVAILABLE," WITH NO WARRANTIES WHATSOEVER. THE COMPANY WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERROR, DELAY, OR INTERRUPTION IN THE SOFTWARE, THE SERVICES OR THE PERFORMANCE OF ITS REMOTE COMPUTER OR ANY WEBSITE. THE COMPANY MAKES NO GUARANTEE, REPRESENTATION, OR WARRANTY REGARDING THE TIMELINESS, RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF ANY PORTION OF THE SOFTWARE, THE SERVICES, ITS EQUIPMENT OR ANY INFORMATION AVAILABLE THROUGH THE SERVICES. YOUR ACCESS TO THE SOFTWARE, THE WEBSITES, THE SERVICES AND ANY EQUIPMENT USED IN CONNECTION THEREWITH IS AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY LIABILITY OR DAMAGE YOU INCUR THROUGH ACCESS TO THE SOFTWARE, THE WEBSITES OR SUCH EQUIPMENT OR THE USE OF THE SERVICES. EXCEPT WHERE THE LAWS AND REGULATIONS OF A PARTICULAR JURISDICTION CONCERNING WARRANTIES CANNOT BE WAIVED OR EXCLUDED BY AGREEMENT, 3H 4 RESPONDERS, LLC, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, THE SERVICES, THE WEBSITES AND ANY RELATED EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. YOU RECOGNIZE THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE ACCESS TO THE SOFTWARE, THE WEBSITES OR ANY EQUIPMENT; AND THAT INTERRUPTIONS, CRASHES, AND DOWNTIME MAY OCCUR FROM TIME TO TIME.
OWNERSHIP AND INTELLECTUAL PROPERTY. The Software and any software or equipment used to provide the Services, including the software, hardware and other technology used by or on behalf of the Company to receive, store, retrieve and download any SOAP Note or any other Services and the Websites, are the property of the Company (or its licensors) and are protected by applicable intellectual property laws. Access to the Software, any Website and any equipment used in providing the Services is licensed, not sold, to you, and to the health care providers designated by you, for use only under the terms of this Agreement; and you are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to the Software or any Website, or any intellectual property rights therein or related thereto. You may utilize the Software, any Website, any such equipment and any other Services solely as expressly set forth in this Agreement. The Company reserves all rights not expressly granted to you under this Agreement. The “3H 4 Responders, LLC” name and logo, and the product and service names associated with the Software, any Website and the Services, are trademarks of 3H 4 Responders, LLC, or third parties, and no right or license is granted to you to use them separate from your right to access and use the Software, the Websites and the Services.
RECORD RETENTION; SOAP NOTE CONTENT. You authorize the Company to make copies of all SOAP Notes uploaded to and downloaded from its remote computers and Websites by you or anyone using your mobile device and the installed Software or any person gaining access to your account; and you authorize the Company to retain such copies indefinitely and to make whatever use of the information contained in such SOAP Notes as the Company may deem appropriate. Subject to the foregoing, you grant 3H 4 Responders, LLC, a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, copy, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, distribute, and display the information contained in any SOAP Note throughout the world in any form, media, software, or technology of any kind, subject at all times to applicable law. In addition, you waive all moral rights in such information (or warrant that all moral rights applicable to such content have been waived). You agree not to upload or provide any information in any SOAP Note that: (i) is libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (ii) an infringement or misappropriation of the intellectual property or other rights of any third party; (iii) is illegal in any way or advocates illegal activity; (iv) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate the Software or any system, data or personal information; (v) is intentionally false, misleading, or inaccurate; or (vi) contains or constitutes an advertisement or solicitation of funds, goods, or services. You may not include in any SOAP Note that you prepare any individually identifiable health information (name, address, full face photograph or other information described in 47 CFR 164.514(b)(2)) that would enable anyone coming into possession of your SOAP Note to identify the individual that is the subject of the SOAP Note based on such information. The Company reserves the right (but shall have no obligation) to review and remove from your SOAP Notes any “individually identifiable health information” or any other information that does not comply with this Agreement. The Company may set limits from time to time, at its discretion, on your use of the Services, including the amount of storage space used in your account.
TERMINATION OF RIGHTS TO USE SOFTWARE AND SERVICES. Until such time as your account has been terminated or so long as information is stored in your account, whichever shall later occur, this Agreement will apply, notwithstanding the termination of your License. If you wish to terminate your License or your account, you must provide notice of termination to the Company by email at customer.service@3H4.com and then reply by email to a confirmation request that will be sent by the Company to your then current email address on the Company’s records. When the Company receives your confirmation of termination, it will terminate access to your account and disable your user name and password. If, for any reason, the Company seeks to terminate your License or your account, other than a termination for misuse as described below, the Company will provide you with a notice of termination by email to your then current email address on the Company’s records, and will terminate your License or account and disable your user name and password at any time starting five days after the date of such email. If you violate any provision of this Agreement or of any license of the software licensed to you by the Company for use as part of the Services, the Company may terminate your account and disable your user name and password immediately. After termination of your account, you will be able to access any records in your account (if any remain), only by requesting access to such records by email at customer.service@3H4.com.
Your right to use the Software, any Website, the Services and any equipment in connection therewith shall immediately terminate if you breach any term or condition of this Agreement or if you fail to renew your License upon the expiration of any annual license period. In addition, the Company may terminate your rights to use the Software, its remote computers, any Website and the Services immediately, for any reason or no reason, with or without notice to you, if it reasonably appears to the Company that your License, the Software, any Website or your account is being misused. In such an event, you must apply for reinstatement by email at customer.service@3H4.com. If, for any reason, your right to use the Software, any Website or any other Services shall terminate, you shall erase the Software from your mobile device. The termination of your rights to use the Software, any Website or any Services or to access your account shall not otherwise affect your obligations under this Agreement.
UPDATES. The Software may automatically download and install updates, upgrades and replacements from time to time from the Company. Such automatic downloads are designed to improve the performance or otherwise cause the Software to comply with the requirements of the Company. They may provide bug fixes, enhanced functions, new software modules and completely new versions. The Company is undertaking no obligation to provide any such updates, upgrades or replacements.
LIMITED REMEDY. If, for any reason, either the Software, any Website or the remote computers of the Company shall not function in the manner described in this Agreement and you shall so advise the Company in writing of such malfunction within thirty days after your download of the Software is completed, the Company will, at its own expense and as its sole obligation and as your sole and exclusive remedy, use commercially reasonable efforts to correct any reproducible error in the Software, the Websites or the remote computers so reported to the Company by you, and replace the Software downloaded by you with a replacement version of the Software or refund the license fee paid by you.
INDEMNIFICATION. You agree to protect, and to indemnify, defend, and hold harmless, 3H 4 Responders, LLC, and its managers, members, officers, directors, employees, agents and licensors, to the fullest extent permitted under law, from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney’s fees) that may at any time be incurred by any of them in whole or in part by reason of any allegations, claims, suits, or proceedings arising from: (i) the content of any SOAP Note prepared by you, (ii) any use of your user name or password by any other person; or (iii) any breach by you of any representation, warranty, covenant or other term or condition of this Agreement.
LIMITATION OF LIABILITY. IN NO EVENT WILL 3H 4 RESPONDERS, LLC, BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LIABILITY, WHETHER IN CONTRACT OR TORT, OR UNDER ANY OTHER LEGAL THEORY, IN CONNECTION WITH THE SOFTWARE, ANY WEBSITE, THE SERVICES OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES OR LIABILITY STEMMING FROM YOUR ACCESS TO OR USE OF (OR YOUR FAILURE TO GAIN ACCESS TO OR USE OF) THE SOFTWARE, ANY WEBSITE, THE REMOTE COMPUTERS OR ANY OTHER SERVICES, OR LOSS OF DATA, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TOTAL CUMULATIVE LIABILITY OF THE COMPANY FOR ANY AND ALL DAMAGES AND LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT AND NOT COVERED BY THE FOREGOING SENTENCE WILL BE LIMITED TO THE AMOUNT OF YOUR ANNUAL LICENSE FEE. The laws of some jurisdictions do not permit the disclaimer of liability for certain types of damages, so portions of the above may not apply to you.
OTHER CONTENT. The Services may include hyperlinks to other websites or resources. The Company has no control over any websites or resources not provided by the Company; and does not endorse, nor is it liable or responsible for, their content. You rely on such websites or resources at your own risk.
U. S. GOVERNMENT END USERS. The Software is a "commercial item," as that term is defined at FAR 2.101, consisting of "commercial computer software" as such term is used in 48 C.F.R. 12.212. It is provided to the U.S. Government only as a commercial end item. Consistent with FAR 12.212 and DFARS 227.7202, all U.S. Government end users acquire the Software with only those rights set forth herein.
NOTICES. Except as expressly stated otherwise, any notices required or allowed under this Agreement will be given to the Company by postal mail (with delivery confirmation) to the address for the Company set forth below or on its website at www.3H4.com. If applicable law requires that the Company accept notice by electronic mail (but not otherwise), then you may give notice by emailing the Company at email@example.comH4.com. The Company may provide notice to you through the Software or any Website. In addition, or in lieu thereof, the Company may give notice by sending e-mail to any e-mail address you provide to the Company. Any notice shall be deemed given 24 hours after the notice is actually received by postal mail, provided through the Software or remote computers, or sent by e-mail, as applicable.
GOVERNING LANGUAGE AND LAW. The governing language of this Agreement is English. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflicts of laws provisions. This Agreement shall not be subject to the Agreement the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. You hereby irrevocably and unconditionally consent to the jurisdiction and venue in the state and federal courts sitting in Boston, Massachusetts (U.S.A.) for the adjudication of all disputes, controversies, or claims arising under or relating to this Agreement, the Software, the Websites and the other Services; and agree not to assert any objection to such jurisdiction or venue (including an objection based on an inconvenient forum) to accept service of process if served in the manner required herein for the delivery of notice to you.
ASSIGNMENT. Neither this Agreement nor any of your rights hereunder may be assigned or otherwise transferred by you in whole or in part, by operation of law or otherwise. Before transferring ownership of your mobile device to any person, you will delete the copy of the Software installed on such device.
AMENDMENT. The Company may modify the Software, this Agreement, any Website, the Services or any terms or conditions posted on any Website at any time with or without notice to you; but the Company shall post any amendment to this Agreement or any terms of service on the Websites. Any such amendment shall become effective as of the day of posting. If you do not agree to be bound by such amendment, you must so advise the Company and terminate your License and your account, whereupon the Company will refund to you a pro-rata portion of your license fee for the then annual license period. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
[End of Agreement]
Mailing Address: 3H 4 Responders, LLC, 31 State Street, 3rd floor, Boston, MA 02109.