Terms of Service Agreement
Last updated: December 24, 2013
This Terms of Service Agreement (the “Agreement”) is an agreement between you (the “User”) and openAirWare LLC, owner and provider of the service PhysBee (“openAirWare”, "PhysBee", "we", or "us"). We provide Users with tools and services to help our customers create and manage personal health records, medical charts, and health information in general (collectively, the “Services”) directly and through the website and associated domains of http://www.PhysBee.com (the “Site”). This Agreement explains our obligations to you, and your obligations to us. This Agreement is the entire Agreement between us. By using the Site in any way you are agreeing to comply with these terms, and any other legal notices or conditions or guidelines posted on the Site which we may update without notice and encourage you to check out here at any time.
1. What We Own
All material and services available on the Site, and all material and services provided by or through PhysBee, its affiliates, subsidiaries, employees, agents, licensors or other commercial partners including, but not limited to, software, all informational text, software documentation, design of and "look and feel," layout, graphics, supporting files, documents, images, or other materials on the Site, whether publicly posted or privately transmitted as well as all derivative works thereof (collectively, the "Materials"), are owned by us or other parties that have licensed their material or provided services to us, and are protected by copyright, trademark, trade secret and other intellectual property laws. All PhysBee trademarks and service marks, logos, slogans and taglines are the property of PhysBee. All other trademarks, service marks, logos, slogans and taglines are the property of their respective owners. Except as otherwise specifically provided herein, nothing should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed on PhysBee without our express written permission, or the express written permission of such third-party that may own the trademark, service mark, logo, slogan or tagline.
2. Rights to Use What We Own
Subject to this Agreement, PhysBee hereby grants you a limited, revocable, non-transferable and non-exclusive license to use the Materials through a user identification reference provided by PhysBee (“User ID”) to the extent, and only to the extent, necessary to access and use the Services in accordance with the terms of this Agreement. This license does not permit you, and you agree not to: store, copy, reproduce, republish, modify, upload, post, translate, scrape, rent, lease, loan, sell, distribute, transfer, transmit, display, decompile, reverse engineer, reverse assemble, decipher or otherwise attempt to discover any programming code or any source code used in or with the Materials or otherwise distribute in any way the Materials other than as specifically permitted in this Agreement. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Materials, create derivative works based on or in any manner commercially exploit the Materials, in whole or in part, other than as expressly permitted in this Agreement. Any use of the Materials for any purpose other than as specifically permitted herein or without our prior consent or the prior written consent of our licensors, as applicable, is expressly prohibited. We reserve all rights not expressly granted in this Agreement. We provide you one User ID for each account held by you, thereby permitting you access to the Materials through the Site. You agree to fully and accurately provide the information requested by us when setting up your accounts and to regularly update such information. Your failure to do so may result in the cancellation of your account and loss of Services. In some cases, you may be allowed to create and manage additional User IDs. You further agree to ensure all individuals permitted to use User IDs under your control are aware of and have agreed to comply with the terms of this Agreement.
3. What You Provide to Us
You are legally responsible for all information, data, text, photographs, or other materials uploaded, posted or stored in connection with your use of the Services (“Content”). PhysBee is not responsible for your Content. You hereby grant PhysBee to store and manage the Content in order to provide you with the Services and hereby represent and warrant that you have all the rights necessary to grant us such license. You are responsible for any Content that may be lost or unrecoverable through your use of the Services.
4. Comments and Feedback
Any questions, comments, suggestions, ideas, feedback, or similar information provided by you to us (“Comments”) are not confidential and you hereby grant us a worldwide, perpetual, irrevocable, royalty-free license to reproduce, display, perform, distribute, publish, modify, edit or otherwise use such Comments as we deem appropriate, for any and all commercial and/or non-commercial purposes, in our sole discretion.
5. Confidential Information
Any information provided to the Site considered Content, as defined above, and not Comments, shall be held private accessible to your individual User ID alone. As owner of the Content, you have the ability, utilizing the Services of the Site to share any and all of the Content with others. If you do choose to share Content with other User IDs, you realize and agree that you are doing so at your own discretion and at your own risk. PhysBee will NOT share any Content provided by you to ANY third parties, UNLESS you have explicitly requested that Content to be shared OR there is legal precedent requiring us to do so. Additionally, you and/or the recipient can revoke sharing of Content through the Site at any time.
6. Monitoring What You Provide Us
PhysBee may, but has no obligation to, monitor Content on the Site created using our Services. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect PhysBee or its customers, or operate the Services properly. PhysBee, in its sole discretion, may refuse to post, remove, or require you to remove, any Content, in whole or in part, alleged to be unacceptable, inappropriate, or in violation of this Agreement.
You agree to all of the following:
a. You hereby certify that you are at least 18 years of age.
b. You will ensure the email address provided in your account registration is valid at all times and will keep your contact information accurate and up-to-date.
c. You will not use the Services or Materials for any unlawful purposes or to conduct any unlawful activity, including, but not limited to, fraud, embezzlement, money laundering or insider trading.
d. You will not use the Services or Materials if you are located in a country embargoed by the U.S., or are on the U.S. Treasury Department's list of Specially Designated Nationals.
e. You will not use the Services or Materials to impersonate another person.
f. You will not imply or state, directly or indirectly, that you are affiliated with or endorsed by PhysBee without our express written permission.
g. You may not send unsolicited messages (also known as junk mail or SPAM) to promote any website published on the Site.
h. You may not upload, post, email, transmit or otherwise make available or initiate any Content that contains software viruses, worms, Trojan horses or any other computer code, files or programs that interrupt, destroy or limit the functionality of the Services or the Materials or that may impact the ability of any PhysBee user to access the Services.
i. You will not access the Services through automated methods. The Services may only be used or accessed through an electronic device through manual control at all times.
j. You may not upload individual files larger than 100MB.
k. You may not send messages using the Services which do not correctly identify you as the sender. Additionally you may not alter the attribution of origin in electronic mail messages or postings.
l. You will not share your password, let anyone else access your account, or do anything that might jeopardize the security of your account. You will not attempt to or actually access the Services or Materials by any means other than through the interfaces provided by PhysBee.
m. You will not attempt to or actually override any security component included in or underlying the Materials or Services.
n. You will not attempt or engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on PhysBee’s infrastructure.
o. You will not publish Content, or links to Content, that is:
i. Pornographic, sexually explicit, or violent.
ii. Illegal (including stolen copyrighted material and material that infringes or has the potential to infringe the intellectual property rights of another).
iii. Reasonably likely to cause harm, or that could be reasonably considered as slanderous or libelous.
iv. Breaches another’s privacy.
p. You will not publish Content that is spam, is machine- or randomly-generated, and/or contains unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing), or mislead recipients as to the source of the material (such as spoofing).
q. You verify that your country of residence is the same as your billing address.
PhysBee may determine in its sole discretion whether or not an account is in violation of any of these policies. Violation of any of these policies may result in user information tracking with such information being stored to identify the offending user. Offending users may be permanently restricted from holding an account or using the Services. If PhysBee reasonably determines that your account is being used for illegal or fraudulent activity then your account may be immediately terminated and your financial data erased. We may also report you to law enforcement officials in the appropriate jurisdictions.
a. You may agree to a free account, a monthly subscription, or a single lifetime membership with purchase of PhysBee.
b. You can opt to upgrade or downgrade your service agreement to any other contract agreement that PhysBee is currently offering for sale at any time during your contract term, as long as the following conditions are met:
i. Your use of the Services is within limits set for the newly chosen level of membership.
ii. You have not purchased a lifetime membership, which can NOT be altered once purchased.
In the event of a contract downgrade, your existing payment contract will end and a new payment contract as requested will begin immediately.
c. At the end of the contract term, your contract will automatically renew for an additional contract term until explicitly cancelled by you. Cancellation must be issued via your website manager interface or via PhysBee's support addresses. Any cancellation issued via your website manager interface must be done at least one (1) day prior to the end of the contract term. Any cancellation not issued via the website manager interface must be done three (3) days prior to the end of the contract term to allow for adequate processing time.
d. Only Services and features clearly indicated as "free" or "no charge" are free or without charge. It is not the responsibility of PhysBee to provide free support for you in the use and operation of PhysBee. All other applications, features, functionality and support provided by PhysBee and its partners are provided for the fees described for each service on the Site (“Fees”) and you are liable for such Fees.
e. If you purchase any Services that we offer for a Fee, you agree to PhysBee, or our third party service providers, storing your payment card information. You expressly agree that we are authorized to charge you (i) a monthly Fee for any applicable Services billed on a monthly basis, (ii) any other Fees for Services you may purchase, and (iii) any applicable taxes in connection with your use of the Services to the payment card you provide and to reimburse us for all collection costs and interest for any overdue amounts. If the payment card you provide expires and you do not provide new payment card information or cancel your account, you authorize us to continue billing you and you agree to remain responsible for any uncollected Fees.
a. Services may be terminated by us, without cause, at any time.
b. Services may be terminated by you, without cause, by following the cancellation procedures set forth in Section 8(c).
c. PhysBee may terminate Services at any time, without penalty and without notice, if you fail to comply with any of the terms of this Agreement or the intellectual property protections applicable to these Services.
d. Notice of termination of Services by PhysBee may be sent to the contact e-mail associated with your account. Upon termination, PhysBee has the right to delete all data, files, or other information that is stored in your account.
10. ERRORS AND ACCESS TO SITE
YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND APPROPRIATENESS OF ALL DATA AND CONTENT WITHIN YOUR WEBSITE; OPENAIRWARE WILL NOT BE HELD RESPONSIBLE FOR INACCURATE INFORMATION AND ANY POTENTIAL DAMAGES CAUSED BY SUCH INACCURACIES. YOU FURTHER UNDERSTAND THAT OPENAIRWARE MAY CHOOSE TO NOT MAINTAIN COPIES OF FILES OR DOCUMENTS THAT ARE SENT BY YOU AND THAT YOU ARE RESPONSIBLE FOR KEEPING BACKUPS OF THIS DATA.
11. Links to Third Party Websites; No Implied Endorsement
The Site may contain links to other web sites owned by third parties. Please note that when you click on any of these links, you are entering another website for which we have no responsibility or control. You agree that we shall not be responsible for any loss or damage of any sort incurred as a result of any such links or as the result of the presence of such links on the Site. In no event shall any reference to any third party, third party website or third party product or service be construed as an approval or endorsement by us of that third party, third party website or of any product or service provided by a third party.
12. DISCLAIMER OF WARRANTY
THE SITE, SERVICES AND MATERIALS ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, OPENAIRWARE AND ITS LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER OPENAIRWARE NOR ITS LICENSORS WARRANT THAT ACCESS TO THE SITE, THE MATERIALS AND/OR THE SERVICES AVAILABLE ON OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED; NOR DOES OPENAIRWARE OR ITS LICENSORS MAKE ANY REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE SERVICES, THE MATERIALS OR THE SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND YOUR RELIANCE UPON THE SERVICES AND/OR THE MATERIALS IS AT YOUR SOLE RISK. IN ADDITION, OPENAIRWARE IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES (SUCH AS EMAILS, POSTING OF ANSWERS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) SENT THROUGH THE SITE TO ANYONE.
IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.
FURTHER, OPENAIRWARE AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICES OR THE MATERIALS OR THE SITE ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SITE, THE SERVICES OR THE MATERIALS OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES. NEITHER OPENAIRWARE NOR ANY THIRD PARTY PROVIDERS, PARTNERS OR AFFILIATES WARRANT THAT THE SITE,ITS SERVERS THE MATERIALS OR THE SERVICES OR ANY E-MAIL SENT FROM THE SITE OR ANY THIRD PARTY PROVIDERS, PARTNERS OR AFFILIATES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
13. LIMITATION OF LIABILITY
WE ARE NOT LIABLE TO YOU OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY PERSONAL INJURY, LOSS OF DATA OR OTHERWISE) ARISING FROM OR IN CONNECTION WITH USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MALPRACTICE OR OTHERWISE, EVEN IF OPENAIRWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY RELEASE OPENAIRWARE AND HOLD OPENAIRWARE AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND THEIR OFFICERS, DIRECTORS, TRUSTEES, AFFILIATES, SUBCONTRACTORS, AGENTS AND EMPLOYEES, HARMLESS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE (INCLUDING, WITHOUT LIMITATION, ACTUAL, SPECIAL, INCIDENTAL AND CONSEQUENTIAL), KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, MATERIALS, SITE, YOUR CONTENT, COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGHTHE SITE. YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE.
14. EXCLUSIVE REMEDY
IN THE EVENT OF ANY PROBLEM WITH THE SITE, THE SERVICES, THE MATERIALS, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING THE SITE, THE SERVICES AND THE MATERIALS. UNDER NO CIRCUMSTANCES SHALL OPENAIRWARE, ITS AFFILIATES, OR LICENSORS BE LIABLE IN ANY WAY FOR YOUR USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR THIRD PARTY USER GENERATED CONTENT AVAILABLE ON OR THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, ANY INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR RELATED TO, THE USE OF THE SITE, THE SERVICES, THE MATERIALS, YOUR CONTENT, THE COMMERCIAL PRODUCTS OR ANY THIRD PARTY USER GENERATED CONTENT AVAILBALE ON OR THROUGH THE SITE. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
We may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, or add, change and modify prices for all or part of the Services for you or for all our users at any time and in our sole discretion. All of these changes shall be effective upon their posting on the Site or by direct communication to you unless otherwise noted. We further reserve the right to withhold, remove and or discard any content available as part of your account, with or without notice if deemed by us to be contrary to this Agreement. For avoidance of doubt, PhysBee has no obligation to store, maintain or provide you a copy of any content that you or other users provide when using the Services.
You agree to indemnify, hold harmless, and defend PhysBee and its licensors, suppliers, officers, directors, employees, agents, affiliates, subsidiaries, successors and assigns (collectively "Indemnified Parties") from and against any and all liability, loss, claim, damages, expense, or costs (including but not limited to attorneys' fees), incurred by or made against the Indemnified Parties in connection with any claim arising from or related to (i) your use (or anyone using your account’s) use of the Services, the Site or the Materials, (ii) your Content, or (iii) any Commercial Products you offer on or through the Site or using our Services. This includes, but is not limited to, any breach or violation of this Agreement by you or anyone utilizing your account. You agree to fully cooperate at your expense as reasonably required by an Indemnified Party. Each Indemnified Party may, at its election, assume the defense and control of any matter for which it is indemnified hereunder. You shall not settle any matter involving an Indemnified Party without the consent of the applicable Indemnified Party.
We reserve the right, in our sole discretion, to modify or replace any part of this Agreement at any time. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Services following the posting of any changes to this Agreement constitutes acceptance of those changes. We may also, in the future, offer new services and/or features through Site (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
The formation, interpretation and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of the state of Delaware without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of the United States of America. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Delware, and you hereby submit to the personal jurisdiction of such courts. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Please also note that certain information, statements, data and content (such as photographs) which you post to the Site could reveal your gender, ethnic origin, nationality, age, and/or other personal information about you. You acknowledge and agree that your submission of such information is voluntary on your part. Further, you acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law. Conversely, NO information within PhysBee will be shared with ANY third party unless required by law, or by your direct request.
Any Content contained within PhysBee shall be considered to be Personal Health Information, and protected by the Health Insurance Portability and Accountability Act (HIPAA). Any attempts to access Content not belonging to you nor explicitly shared with you by the owner of said information can and will be considered a violation of HIPAA, and may result in state and/or federal charges being brought against you.
You acknowledge that a violation or attempted violation of any of this Agreement will cause such damage to PhysBee as will be irreparable, the exact amount of which would be impossible to ascertain and for which there will be no adequate remedy at law. Accordingly, you agree that PhysBee shall be entitled as a matter of right to an injunction issued by any court of competent jurisdiction, restraining such violation or attempted violation of these terms and conditions by you, or your affiliates, partners, or agents, as well as to recover from you any and all costs and expenses sustained or incurred by PhysBee in obtaining such an injunction, including, without limitation, reasonable attorney's fees. You agree that no bond or other security shall be required in connection with such injunction.
In no event shall you be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of PhysBee, the exploitation of any advertising or other materials issued in connection therewith, or the exploitation of the Site or any content used or displayed through the Site.
a. If any portion of this Agreement is found to be unenforceable, the remaining portion will remain in full force and effect.
b. If we fail to enforce any of this Agreement, it will not be considered a waiver.
c. Any amendment to or waiver of this Agreement must be made in writing and signed by us.
d. You will not transfer any of your rights or obligations under this Agreement to anyone else without our prior written consent.
e. All of our rights and obligations under this Agreement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.
f. This Agreement does not confer any third party beneficiary rights.
g. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative 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.