Solismed Developers may revise the terms set forth in this Agreement from time to time by posting an updated version to Solismed Web site and/or displaying it during the Software login. You should review this Agreement periodically because you are bound by it when you use the Software as well as Solismed Web site. Your continued use of the Software after a change to this Agreement constitutes your binding acceptance of the revised Agreement.
Solismed Developers grant to you a perpetual, nonexclusive, nontransferable, worldwide and royalty-free license to use the Software on any Web site, desktop computer and/or mobile device. The Software is protected by copyright, trademark, and trade secrets laws, international treaty provisions and various other intellectual property laws. You may not modify, reverse engineer, decompile or disassemble the Software in any way.
2.1 Do It Yourself. You are solely responsible for installing and maintaining the Software at your site. You may hire Solismed Developers or a third party to do some of the work for you.
2.2 Solismed Hosted Solution. Liquid Web is responsible for providing a HIPAA-compliant hosting service that includes data security and backup. Solismed Developer (Intesync LLC) is responsible for maintaining and updating the Software on a regular basis.
All technical support is provided via Solismed Helpdesk and managed by Solismed Developer (Intesync LLC). Any request to make changes or add new features to the system will be charged according to the amount of development work needed. Most bug fixes are done via new build releases free of charge. However, you may be charged a fee if your version has been customized or if you cannot wait for the new build releases. Solismed Developers shall continue to own all rights, title and interest in and to the Software and all intellectual property rights embodied therein or related thereto including, but not limited to, the source codes and any customizations, updates and corrections to the Software.
4.1 Administration. When you sign up to use Solismed on behalf of your practice, you are assigned "Practice Manager" user role, and your account is established as the owner of all user accounts in your practice. You will be solely responsible for managing user access and activities of your staff members. Some of them may also sign up for an account or electronically entered into this Agreement, however, only you are entitled to any of the rights, remedies or benefits under this Agreement and control over the administrative rights of the Software.
4.2 Professional Responsibility. Use of the Software is not a substitute for a health care provider's standard practice or professional judgment. Any decision with regard to the appropriateness of treatment, or the validity or reliability of information or content made available by the Software, is your sole responsibility. Solismed Developers shall have no liability for the consequences to you or your patients for your use of the Software.
4.3 Safeguards. You will implement and maintain reasonable and appropriate administrative, physical and technical safeguards to protect information within the Software, whether or not you are subject to HIPAA. These safeguards shall comply with applicable federal, state, and local laws. You will inform Solismed Helpdesk promptly of any security or privacy breach with regards to your use of the Software.
4.4 Personal Health Record. Your patients may access portions of their medical records through a Web-based "Patient Portal" that is included in the Software. You are solely responsible for granting the Patient Portal access to your patients and managing the information that you make available in the Patient Portal.
4.5 Data Backup. You are responsible for maintaining a backup of your practice data. This data backup can be in the form of printed materials or a download of the Software data. If you subscribe to Solismed Hosted Solution, the backup assistance provided by Liquid Web is a "Courtesy Support." Solismed Developers shall have no liability for any lost or corrupted data resulting from the provision of this Courtesy Support.
4.6 Termination. Solismed Developers reserve the right to terminate or suspend your account and access to the Software for any reason, with or without notice. Solismed Developers shall be entitled to full payment for services performed prior to the effective date of termination.
The Software includes third-party databases that may require that you enter into separate agreements with third parties. There are also several optional services that are integrated with the Software, such as e-prescribing, faxing, insurance claims, laboratory services, and credit card merchant services. You will comply with and, upon request, execute, any agreements or acknowledgments that may be required for the use of such databases or services, and hereby agree to comply with the terms of any license or other agreement relating to third-party databases and services included in the Software; or made accessible to you through the Software.
The Software is provided “as is” and “as available,” without any express, implied, or statutory warranties of title, merchantability, fitness for a particular purpose, noninfringement, or any other type of warranty or guarantee. No data, documentation or any other information provided by Solismed Developers or obtained by you from or through the Software creates or implies any warranty from Solismed Developers to you.
Solismed Developers disclaim any knowledge of, and do not guarantee: (a) the accuracy, reliability, or correctness of any data provided through the Software; (b) that the Software will meet your specific business needs or requirements; (c) that the Software will be available at any particular time or location, or will function in an uninterrupted manner or be secure; (d) that Solismed Developers will correct any defects or errors in the Software, API, documentation, or data; or (e) that the Software is free of viruses or other harmful code. Use of data you access or download through the Software is done at your own risk – you are solely responsible for any damage to your property, loss of data, or any other loss that results from such access or download.
You agree to indemnify, defend, and hold harmless Solismed Developers and each of their respective officers, directors, partners, employees, agents, successors, and assigns, or any of them from and against all loss, cost, expense or liability (including reasonable attorney's fees) arising out of a claim by a third party against Solismed Developers based upon your use of the Software or your breach of this Agreement.
In no event shall Solismed Developers be liable for any indirect, incidental, special, consequential, punitive, exemplary or similar or additional damages incurred or suffered including loss of profits, loss of revenues, loss of data, loss of business information, loss of use of any equipment or process, loss of goodwill, or business interruption arising out of or in connection with your use of the Software, even if Solismed Developers have been advised or are aware of the possibility of such damages. Further, in no event shall Solismed Developers' aggregate liability for any matter arising out of your use of the Software, whether in contract, tort (including negligence), or otherwise, exceed 50% of the amount paid in fees to Solismed Developers by you for using the Software.
9.1 Binding Arbitration. In the event that there is a dispute, claim or controversy arising out of or relating to statutory or common law claims, the breach, termination, enforcement, interpretation or validity of any provision of this Agreement, and the determination of the scope or applicability of your agreement to arbitrate any dispute, claim or controversy originating from this Agreement, but specifically excluding any dispute principally related to either party’s intellectual property (which such dispute will be resolved in litigation before the United States District Court for the Northern District of California), will be determined by arbitration in Alameda County, California before a single arbitrator. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules.
9.2 Class and Jury Trial Waivers. To the fullest extent permitted by Law, each of the parties agrees that any dispute arising out of or in connection with this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim or dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.
If any provision of this Agreement shall prove to be invalid, void, or illegal, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby, and such provisions shall remain in full force and effect.
The interpretation of this Agreement and the resolution of any disputes arising under this Agreement shall be governed by the laws of the State of California, without regards to its conflicts of laws provisions. You agree that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced exclusively in Alameda County, California.
The terms set forth in this Agreement constitute the final and exclusive Agreement with respect to the Software. All prior agreements, discussions, representations, warranties and covenants are merged herein. There are no warranties, representations, covenants or agreements, expressed or implied, between the parties except those expressly set forth in this Agreement.