NoteMD Platform Terms of Service
Last updated January 30th, 2024
These Platform Terms of Use ("Terms") form a legal contract between you and NoteMD Inc. ("NoteMD," "we," "us," or "our"). These Terms set forth the conditions under which you may access and use our proprietary Software as a Service (SaaS) platform, provided to you via a web application and/or mobile application, if available (the "Platform").
PLEASE READ THESE TERMS CAREFULLY. By accessing and/or using the Platform, you confirm that you have read, understood, and agree to be bound by these Terms, along with the terms and conditions of our Privacy Policy (the "Privacy Policy"), which is incorporated by reference into these Terms and collectively forms the "Agreement." If you do not agree to the terms of this Agreement, you should not access or use the Platform.
If you are accepting these Terms on behalf of a corporation or other legal entity, you affirm that you are authorized to commit that entity to this Agreement, and in such a case, "you" and "your" will refer to that entity.
We reserve the right to change, halt, or end the Platform, or to adjust this Agreement, at our discretion, without prior notification. Should we alter this Agreement, we will post the update on the Platform. By continuing to access or use the Platform after such an update is posted, you signify your acceptance of the revised Agreement. If you do not agree to the revised Agreement, your sole option is to discontinue using the Platform.
NOTE: The sections labeled "BINDING ARBITRATION" and "CLASS ACTION WAIVER" include a binding arbitration clause and a waiver for class action suits. These sections have significant implications for your legal rights. Please read them attentively.
Terms not defined in these Terms are defined in our Privacy Policy.
1. HANDLING OF PERSONAL DATA
Your interaction with the Platform may necessitate the sharing of specific personal data with us. Our practices regarding the gathering and utilization of such personal data adhere to our Privacy Policy, which is fully integrated into this document by reference.
2. LICENSE TO ACCESS AND USE THE PLATFORM
Under the terms of this Agreement, NoteMD grants you a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to permit your authorized users to access and use the Platform solely for your internal business evaluations.
You are prohibited from (and from allowing any third party to): (i) reverse engineer, decompile, disassemble, or attempt to discover the source code or interface protocols of the Platform; (ii) modify, adapt, or translate the Platform or any part thereof; (iii) create any derivative works of the Platform or any part thereof; (iv) redistribute, sublicense, or resell the Platform or any part thereof; (v) remove or alter any proprietary notices or restrictions on the Platform; (vi) use the Platform for any unlawful purpose, to develop competing products or services, or for any purpose not expressly allowed in this Agreement; (vii) upload or introduce any malicious software or harmful code to the Platform; (viii) retain, store, or archive any part of the services (including any data within) outside the Platform other than those outputs created through the Platform's intended functionality without NoteMD's prior written consent; (ix) use the Platform for service bureau, timeshare, service provider activities, or any similar third-party benefit activities; or (x) bypass any security measures or restrictions implemented by NoteMD to protect the Platform.
Violation of this section grants NoteMD the right to immediately revoke your access to the Platform, or any part thereof, without notice. NoteMD also reserves the right to modify any feature, functionality, or content of the Platform at any time, without notice or liability.
3. USER ACCOUNT MANAGEMENT
Your staff and contractors who utilize the Platform on your behalf are designated as "Authorized Users" within this document. Every Authorized User is required to establish an account by registering their email address and setting up a password (together referred to as "Login Credentials"). It is prohibited for Login Credentials to be used collectively among Authorized Users or shared by any Authorized User with an external party. Login Credentials must remain confidential. You are obligated to promptly inform us about any actual or suspected unauthorized access of Login Credentials. You bear full responsibility for all actions, including any misuse or use of the Platform, linked to the Login Credentials of any Authorized User. Additionally, it is your duty to ensure that your Authorized Users adhere to these Terms of Use. You must immediately notify us should there be any necessity to deactivate or modify any Login Credentials. We reserve the authority to deactivate any Platform account username or password at any given moment for any reason, particularly if, according to our sole judgment, we determine that there has been a failure on your part to abide by these Terms of Use.
4. INTELLECTUAL PROPERTY RIGHTS
The Platform includes various forms of content such as software, text, graphics, images, sound recordings, audiovisual works, and other materials provided by or on behalf of NoteMD (collectively, the "Content"). This Content may be owned by us or third parties and is protected by both United States and international intellectual property laws. Unauthorized utilization of the Content may infringe copyright, trademark, and other legal statutes.
You are granted no ownership rights in the Content, and you may only use the Content in accordance with this Agreement. Any use beyond what is permitted requires our explicit prior written consent. All original copyright and proprietary notices must be maintained on any copies of the Content you create. The Content may not be sold, transferred, licensed, modified, or used in any public or commercial manner outside the scope of this Agreement. Posting or using the Content on any other website or in a networked computer environment for any purpose is strictly prohibited.
If you breach any term of this Agreement, your authorization to access and use the Content and the Platform is automatically revoked, and you must immediately destroy any copies of the Content in your possession. The trademarks, service marks, and logos of NoteMD (the "NoteMD Trademarks") displayed on the Platform are registered and unregistered marks of NoteMD. Trademarks of other companies, products, and services found on the Platform may be owned by third parties (the "Third-Party Trademarks," and together with NoteMD Trademarks, the "Trademarks"). The presence of Trademarks on the Platform does not imply any license or right to use them without our specific prior written permission for each usage. Linking to or from the Platform using the Trademarks without our prior written approval is forbidden. All goodwill generated from using NoteMD Trademarks benefits us directly.
Certain aspects of the Platform are safeguarded by trade dress, trademark, unfair competition, and other state and federal laws and should not be copied or imitated in any form, including the use of framing or mirror techniques. Reposting the Content without our specific written consent for each instance is not allowed.
5. DATA MANAGEMENT
"Your Data" refers to any data and information submitted to the Platform by you and your Authorized Users, including but not limited to patient interactions ("Patient Recordings") and personal details of Authorized Users. "Patient Recordings" include audio and/or video sessions with patients (and their relatives or friends, as applicable) uploaded to the Platform, as well as data collected during these sessions. "Protected Health Information" or "PHI" is as defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its regulations. "Usage Data" consists of anonymized analytical data about the Platform's performance and usage by you and your Authorized Users. "Output" refers to medical documentation generated from processing Your Data through the Platform.
You retain all rights to Your Data and Output, including any changes or enhancements made. You grant NoteMD a non-exclusive, global, fully paid, royalty-free license, with sublicensing rights, to use Your Data as needed for fulfilling our obligations under this Agreement and for our internal business purposes, such as improving the Platform. PHI within Your Data will be processed in accordance with the Business Associate Agreement (BAA) attached to this Agreement. You are responsible for the accuracy and legality of Your Data. In case of any conflict, the terms of the BAA will prevail regarding PHI processing. By providing Your Data, you accept the BAA terms, which are part of this Agreement.
We may use De-identified Data for our discretion, including sharing with third parties. We'll also link De-identified Data with your customer ID for Platform customization and training. We may use Your Data and Usage Data in aggregated, anonymized form ("Aggregate Data") for product and service improvement. Aggregate Data does not identify you. You consent to our collection, use, and exploitation of Aggregate Data.
6. DATA RETENTION
You can select to immediately delete Patient Recordings after processing or store them in the Platform as per your chosen retention settings for Your Data. Depending on your settings, Your Data will be retained for 30 days or the Agreement's term. After 30 days, Your Data may be part of our backup system for an additional seven days before deletion according to our data retention policy. You control these settings and are responsible for your choices.
7. FEES
For Platform access, you agree to pay the fees of your chosen subscription plan within 30 days of invoice receipt. We may modify our pricing with reasonable notice, with changes taking effect in the subsequent service year. We may introduce new fees upon notice. Subscription payments are processed through a third-party payment processor, which we may change at our discretion.
8. USER REPRESENTATIONS AND WARRANTIES
You affirm and guarantee that you possess (i) all necessary rights and permissions to supply or grant us access and usage of Your Data, and (ii) secured all requisite consents, permissions, and authorizations in compliance with applicable laws and regulations concerning Your Data, including but not limited to patient consents, parental or guardian consents, and necessary consents for recording patient sessions and handling PHI ("Consents").
9. ENCOURAGEMENT OF FEEDBACK
Your insights, comments, and suggestions for enhancing the Platform and our services ("Feedback") are highly valued and encouraged. While we welcome your emails, please refrain from sending any content that contains confidential information. We are free to utilize and share any ideas, expertise, techniques, or materials included in your Feedback for any purpose, including developing and marketing products and services incorporating such Feedback, without any obligation for compensation or acknowledgment to you.
10. INDEMNITY OBLIGATIONS
You agree to indemnify, defend, and hold harmless NoteMD, its affiliates, and their respective shareholders, officers, directors, employees, agents, and representatives ("NoteMD Indemnitees") from any losses, damages, liabilities, costs, and expenses, including reasonable attorney fees ("Losses"), arising from any third-party claim related to (i) your or your Authorized Users' violation of this Agreement; (ii) improper use of the Platform, Content, or Output; (iii) negligence, willful misconduct, fraud, or illegal acts; or (iv) infringement of any third-party rights. This obligation is contingent upon us promptly notifying you of such claim, providing reasonable cooperation at your expense, and allowing you sole control over the defense and settlement negotiations.
11. LEGAL COMPLIANCE
The Platform originates from the United States, and we make no representation regarding its suitability or availability for use outside the U.S. Accessing the Platform from territories where it might be illegal is prohibited. You are solely responsible for adhering to the laws of your jurisdiction, regardless of your location.
12. AGREEMENT DURATION AND TERMINATION
Your access to the Platform begins upon acceptance of these Terms and continues throughout the term of your chosen subscription plan ("Term"). The Term will automatically renew for successive periods equal to your initial subscription term unless either party gives a thirty (30) day notice prior to the current term's end, indicating the desire not to renew.
We reserve the right to modify, suspend, or terminate your access to the Platform at any time without notice or liability. The provisions of Sections 4, 5, 6, 7, and 9-21 will persist beyond the termination of these Terms.
13. PLATFORM USAGE GUIDELINES
By using the Platform, you commit to the following:
- Avoid using the Platform for illegal activities.
- Do not gather market research for competing entities through the Platform.
- Refrain from posting content that violates intellectual property rights, is promotional without permission, defamatory, indecent, or violates privacy.
- Avoid impersonation and misrepresentation of affiliations.
- Do not attempt to reverse engineer or dismantle the Platform's software.
- Ensure not to obstruct the Platform's advertisements or safety features.
- Avoid bypassing the Platform's protective measures.
- Do not employ automated tools for data extraction against our policy.
- Avoid actions that overburden our infrastructure.
- Do not disrupt the Platform's operations or compromise its security.
We retain the absolute right to block access to the Platform without prior notice for any reason.
14. ACCESS RESTRICTIONS
The Platform is intended for users who are at least 18 years old. If you are under 18, you are prohibited from accessing or using the Platform. By agreeing to these Terms, you represent that you are at least 18 years old.
15. DISCLAIMERS AND LIABILITY LIMITATIONS
The Platform, Content, and our services are provided "as is" without any warranties, expressed or implied, by NoteMD or its suppliers. We disclaim all warranties, including those of merchantability, fitness for a particular purpose, and non-infringement. The Platform is not intended for medical diagnosis or treatment. You and your Authorized Users bear full responsibility for any medical decisions or treatments based on the Platform's Output. NoteMD is not liable for any harm resulting from the Platform's use.
We do not guarantee the Platform's accuracy, reliability, completeness, or currency. Any reliance on the Platform or its Output is at your own risk. NoteMD's total liability for any claims related to the Platform is limited to the greater of $100 or the total fees you paid to NoteMD in the three months preceding the claim.
16. EXTERNAL SITES DISCLAIMER
The Platform may include links to third-party sites ("External Sites"), provided for convenience and not as an endorsement. We are not responsible for the content or accuracy of these External Sites. Accessing External Sites is at your own risk, and we recommend taking precautions to protect your computer
17. GOVERNING LAW AND JURISDICTION
This Agreement and any related legal matters will be governed by Delaware state law, disregarding its conflict of law principles. Both parties consent to the exclusive jurisdiction of state and federal courts in Delaware for any disputes arising from or related to this Agreement. All objections to jurisdiction, venue, or inconvenient forum are waived, ensuring that any legal actions or proceedings related to this Agreement are subject to the exclusive jurisdiction of said courts.
18. GENERAL TERMS
You are not permitted to transfer any of your rights or obligations under this Agreement to anyone else without our prior written consent. Our failure to enforce any part of this Agreement is not a waiver of our right to later enforce that or any other part of this Agreement. Waiver against us is only effective if obtained in writing, and a waiver in one instance does not imply a waiver in any future case. This Agreement, including any other agreements or terms incorporated by reference, represents the entire understanding between you and us regarding the Platform and supersedes any prior communications or agreements, whether they were oral or written. Headings are for convenience only and should not be considered in interpreting this Agreement. This Agreement benefits and is binding upon the successors, assigns, licensees, and sublicensees of the parties.
19. ARBITRATION AGREEMENT
Should a dispute arise under or in relation to this Agreement or the Platform, it will be resolved exclusively through binding arbitration under the Federal Arbitration Act. Both parties waive their rights to a jury trial or court litigation, except for disputes eligible for small claims court. Arbitration, which offers limited discovery and appeal, will be conducted by a neutral arbitrator, whose decision is final. The arbitration will follow JAMS Comprehensive Arbitration Rules and Procedures or its Streamlined Arbitration Rules, as applicable. Each party is responsible for their own arbitration fees. Arbitration may be in-person, document-based, by phone, or online, and if in-person, it will occur in the U.S. county of your residence. The arbitrator's award can be confirmed in any competent court. This clause does not prevent seeking provisional court remedies. Cooperation in document and information exchange is expected after arbitration begins.
20. CLASS ACTION WAIVER
Any arbitration or legal proceeding will be limited to the dispute between us and you individually, prohibiting any class action or collective arbitration. You agree to bring claims against us only in your individual capacity, not as a plaintiff or class member in any purported class or representative proceeding.
21. RIGHT TO INJUNCTIVE RELIEF
You acknowledge that any breach or threatened breach of our intellectual property or confidentiality rights will cause us irreparable damage, entitling us to injunctive relief to enforce this Agreement. We may seek interim or injunctive relief in any court with jurisdiction in Delaware to protect our rights, pending arbitration. You consent to the jurisdiction and venue of such courts for these purposes.
22. EXTERNAL SITES DISCLAIMER
The Platform may feature links to third-party websites ("External Sites"), which are provided for convenience only and not as an endorsement by us. We are not responsible for the content, accuracy, or reliability of any External Sites. If you decide to access any External Sites, you do so at your own risk, and we recommend taking precautions to protect your devices from viruses and other harmful elements.