Terms and Conditions
Last Update: March 23, 2023
DOCSINK SAAS Terms and Conditions
Last Amended March 23, 2023
These terms and conditions (the “Terms and Conditions”) shall apply to any purchase or procurement of certain software products or services by the Customer from DocsInk, LLC (“Licensor” or “DocsInk”) (“Licensee” or “Customer”) from DocsInk or Licensor under the applicable Sales Order.
These Terms and Conditions shall apply to any Licensed Services provided to Licensee by any affiliate or subsidiary of Licensor. In the event of a conflict between the provisions of these Terms and Conditions, the Sales Order, an attachment to the Sales Order, or any related agreements previously executed between these parties the following order of precedence shall apply: (a) the Sales Order; (b) these Terms and Conditions; (c) an attachment to the Sales Order; (d) any related agreements previously executed between these parties, including the Master Services Agreement (“MSA”).
In addition to capitalized terms defined elsewhere in these Terms and Conditions, the following terms have the meanings set forth below.
- “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Licensed Services.
- “Action” has the meaning set forth in Section 11.1
- “Aggregated Data” means data, which is based on or derived from Customer Data and which has been aggregated and de-identified in a manner that does not designate or identify Customer or its Authorized Users as the source of the data.
- “AMA” means the American Medical Association.
- “Authorized User” means each of the individuals authorized by Customer to use the Licensed Services pursuant to Section 3.1 and subject to the terms and conditions of these Terms and Conditions.
- “BAA” means a Business Associate Agreement as defined by HIPAA, and attached as an exhibit to the MSA where applicable.
- “Collateral” means materials provided by DocsInk to the Customer to describe services, workflows, and/or for education, training and setup.“Current Procedural Terminology (CPT®)” means content from the print publication Current Procedural Terminology (“CPT”), Fourth Edition and CPT Standard data file published by the AMA.
- “Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Licensed Services or that incorporates or is derived from the Processing of such information, data or content by or through the Licensed Services. “Customer Data” may include Personal Information, but excludes Usage Data.
- “Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, equipment, mobile devices, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
- “DocsInk Apps” means the iOS and Android based applications that is licensed, delivered and hosted by DocsInk.
- “DocsInk Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by DocsInk or its designee to disable Customer’s or any Authorized User’s access to or use of the Licensed Services automatically with the passage of time or under the positive control of DocsInk or its designee.
- “DocsInk Indemnitee” has the meaning set forth in Section 11.1.
- “DocsInk Materials” means the Licensed Services, Documentation and DocsInk Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by DocsInk or any Subcontractor in connection with the Licensed Services or otherwise comprise or relate to the Licensed Services or DocsInk Systems.
- “DocsInk Personnel” means all individuals involved in the performance of Licensed Services as employees, agents or independent contractors of DocsInk or any Subcontractor.
- “DocsInk Platform” means the Software as a Service that is licensed, delivered and hosted by DocsInk.
- “DocsInk Systems” means the information technology infrastructure used by or on behalf of DocsInk in performing the Licensed Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by DocsInk or through the use of third-party services.
- “Documentation” means any manuals, instructions or other documents or materials that the DocsInk provides or makes available to Customer in any form or medium that describe the functionality, components, features or operation of the Licensed Services.
- “Effective Date” means the date stated and defined in the MSA.
- “EULA” means DocsInk’s End User Licensing Agreement located at https://docsink.com/end-user-license-agreement/.
- “Fees” has the meaning set forth in Section 7 and in the MSA.
- “Force Majeure Event” has the meaning set forth in the MSA.
- “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby. Harmful Code does not include any DocsInk Disabling Device.
- “HIPAA” means Health and Insurance Portability and Accountability Act of 1996, and all rules and regulations issued thereunder.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Law” means any applicable statute, law, or regulation of any federal, state, local government.
- “Licensed Services” means the DocsInk software application or applications, and all new versions, updates, revisions, improvements and modifications of the foregoing, that DocsInk provides remote access to and use of as part of the Licensed Services.
- “Permitted Use” means any use of the Licensed Services by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations, patient care and related services.
- “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
- “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located. Personal Information includes all “protected health information” as defined under HIPAA.
- “Process” means to take any action or perform any operation or set of operations that the Licensed Services are capable of taking or performing on any data, information or other content. “Processing” and “Processed” have correlative meanings.
- “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service DOCSINKs and legal advisors.
- “Requirements” has the meaning set forth in Section 4.5(a).
- “Subcontractor” has the meaning set forth in Section 2.5 .
- “Term” has the meaning set forth in Section 9.1.
- “Territory” means the United States, excluding its territories and protectorates.
- “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, website, documents, data, content, specifications, products, equipment or components of or relating to the Licensed Services that are not proprietary to DocsInk and require a separate license under terms established by their licensor, which may include data files published by the AMA.
- “Usage Data” is anonymized, or aggregated data about users or use of the Licensed Services collected by DocsInk across its customers, which is owned by and may be used by DocsInk in any manner in DocsInk’s discretion, including to improve DocsInk’s services generally. For clarity, Usage Data does not include Personal Information.
- “Website” means www.docsink.com or any successor website notified by DocsInk to Customer.
Capitalized terms not defined herein shall have the meaning as defined in the MSA.
2. Licensed Services
2.1 Licensed Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with these Terms and Conditions and EULA, during the Term, DocsInk shall provide to Customer and its Authorized Users access to the Licensed Services as set forth in the applicable Sales Order.
- Planned maintenance of the Services;
- Service downtime or degradation due to a Force Majeure Event;
- Any other circumstances beyond DocsInk’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials, issues arising from Customer’s Systems, misuse of the Services, or use of the Services other than in compliance with the express terms of this Terms and Conditions, the MSA, the EULA, the Documentation and any terms bearing on Third Party Materials in a Schedule hereto; and
- Any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Services, DocsInk Materials, or Third Party Materials as permitted by this SaaS Agreement or at the sole discretion, without advance notice, of DocsInk.
2.3 Changes. DocsInk reserves the right, in its sole discretion and without prior notice, to make any changes to the DocsInk Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of DocsInk’s services across its customers, (ii) security and privacy measures of the Licensed Services or DocsInk Systems, (iii) the competitive strength of or market for DocsInk’s services; or (iv) the cost efficiency or performance of such services; or (b) to comply with applicable Law.
2.4 Support Licensed Services. Subject to the terms hereof (including payment of all applicable fees), DocsInk agrees to use reasonable commercial efforts to provide Customer the Support Licensed Services in accordance with the terms of the Service Level Agreement (the “SLA”) located at https://docsink.com/service-level-agreement.
2.5 Subcontractors. DocsInk may from time to time in its discretion engage third parties to perform the Licensed Services (each, a “Subcontractor”), in accordance with the BAA, where applicable.
- a security or privacy breach of DocsInk’s Licensed Services or DocsInk Systems;
- DocsInk receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires DocsInk to do so; or
- DocsInk believes, in its sole discretion, that:
- Customer or any Authorized User has failed to comply with, any term of these Terms and Conditions, or accessed or used the Licensed Services beyond the scope of the rights granted or for a purpose not authorized under these Terms and Conditions or in any manner that does not comply with any instruction or requirement of the EULA or the Documentation;
- Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or
- These Terms and Conditions expires or is terminated. For a suspension or termination under Section 2.6(a) or (b) above Customer will be entitled to a credit or return (in DocsInk’s discretion) of any prepaid fees corresponding to the period Licensed Services (or the applicable portion thereof) were not available on account of Sections (a) or (b) above. No suspension or termination under this Section 2.6 shall change Customer’s obligation to pay any amounts accrued in respect of Licensed Services prior to the suspension or termination. This Section 2.6 does not limit any of either Party’s other rights or remedies, whether at law, in equity or under these Terms and Conditions.
3. Authorization and Customer Restrictions
3.1 Authorization. Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with these Terms and Conditions, DocsInk hereby authorizes Customer and its Authorized Users to access and use, solely in the Territory and during the Term, the Licensed Services solely for the Permitted Use by and through Authorized Users in accordance these Terms and Conditions, the EULA and the Documentation. Prior to accessing or using the Licensed Services, at DocsInk’s request, the Customer shall provide DocsInk with all of the following for each Authorized User: (a) name; (b) email address; and (c) other confirmatory demographics as requested by DocsInk in DocsInk’s sole discretion. By submitting the above information to DocsInk, Customer hereby certifies all such information is accurate and complete to Customer’s knowledge (following due inquiry by Customer) and acknowledges and agrees that Customer authorizes DocsInk to confirm the validity and veracity of such information at any time. Customer shall update Authorized User information as applicable.
- Copy, modify or create derivative works or improvements, in whole or in part, of the DocsInk Materials;
- Copy, download, or printing of content included in the DocsInk Materials except that Customer may freely access its Customer Data and print or download any reports generated through the Licensed Services containing Customer Data;
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any DocsInk Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- Reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Licensed Services, in whole or in part;
- Bypass or breach any security device or protection used by the Licensed Services or access or use the Licensed Services other than by an Authorized User through the use of his or her own then valid Access Credentials;
- Input, upload, transmit or otherwise provide to or through the Licensed Services or DocsInk Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- Damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Licensed Services, DocsInk Systems or DocsInk’s provision of services to any third-party, in whole or in part;
- Remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any DocsInk Materials, including any copy thereof;
- Access or use the DocsInk Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right, privacy right, confidentiality right, or other right of any third-party (including by any unauthorized access to, misappropriation, use, alteration, interception, destruction or disclosure, or any attempts made thereof, of the data of any other DocsInk customer);
- Access or use the DocsInk Materials for purposes of competitive analysis of the DocsInk Materials, the development, provision or use of a competing software service or product or any other purpose that is to the DocsInk’s detriment or commercial disadvantage;
- Access or use the DocsInk Materials in violation of applicable Law, including, to promote “off-label” uses of pharmaceuticals or medical devices as determined under United States Food and Drug Administration rules, regulations, and guidelines;
- Share individual Access Credentials with another Authorized User or Person for any purpose;
- Post, transmit, submit, or store content that: (i) is false, fraudulent, libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, infringing on Intellectual Property Rights, abusive, illegal or otherwise objectionable, (ii) constitutes or encourages a criminal offense, violates the rights of any Person or otherwise gives rise to liability or violations of any Law, or (iii) contains Harmful Code, political campaigning, chain letters, mass mailings, or any form of “spam”; or
- Otherwise access or use the DocsInk Materials beyond the scope of the authorization granted under Section 3.1.
3.3 Special Limit for Healthcare Providers. Customer shall not rely on the DocsInk Materials or any Third Party Materials as a substitute for professional judgment. The Licensed Services are merely a tool to facilitate collection, organization and access to Customer Data; Customer alone is responsible for dispensing medical or professional advice based on any information accessible through the Licensed Services. The Licensed Services on their own (without the application of Customer’s professional judgment) are not intended for and shall not be used to make any diagnosis, prescribe any treatment or cure of any medical conditions. Dispensing of healthcare advice to patients of Customer is entirely dependent upon Customer’s professional judgment. Neither DocsInk nor its licensors practice medicine and the Licensed Services do not dispense medical services.
4. Customer Obligations
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term:
- Comply with the limits on use set out in Section 3.2;
- Set up, maintain and operate in good repair and in accordance with any minimum technical requirements notified by DocsInk all Customer Systems on or through which the Licensed Services are accessed or used;
- Provide DocsInk Personnel with such access to Customer’s premises and Customer Systems as is necessary for DocsInk to perform the Licensed Services;
- Provide all cooperation and assistance as DocsInk may reasonably request to enable DocsInk to exercise its rights and perform its obligations under and in connection with these Terms and Conditions; and
- And employ appropriate security with respect to its data and systems, including pursuant to Section 5 below. Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Licensed Services and DocsInk Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any:
- Information, instructions or materials provided by any of them to the Licensed Services or DocsInk;
- Results obtained from any use of the Licensed Services or DocsInk Materials; and
- Conclusions, decisions or actions based on such use, including, without limitation, diagnosis, treatment and cure of any medical conditions and dispensing of healthcare advice to patients of Customer.
4.2 Effect of Customer Failure or Delay. DocsInk is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under these Terms and Conditions.
No Customer personnel, other than Authorized Users, shall access or use the Licensed Services or DocsInk Systems. Customer and each Authorized User shall not disclose any information about any Person unless such disclosure shall be permissible under applicable Law, including HIPAA. Customer and Authorized Users shall be over the age of legal majority, enter into legally binding agreements under applicable law, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and Conditions, and to qualify under, abide by, and complete with the terms of these Terms and Conditions. Customer and Authorized Users shall not access or use the DocsInk’s Licensed Services or DocsInk Systems without valid Access Credentials. Notwithstanding Section 3.1 of these Terms and Conditions, the authorized status, validity, and veracity of any information provided by Customer or an Authorized User shall be subject to verification by DocsInk at any time, in the DocsInk’s sole discretion. Each Authorized User of Customer shall be deemed to have actual and apparent authority to act on Customer’s behalf, and Customer assumes all risk of use of Access Credentials by such Authorized Users and any unauthorized use of such Access Credentials, and Customer shall be responsible for any activity through Customer’s Licensed Services account made through the use of the Access Credentials by any Person.
4.5 Customer Data.
(a) Customer Data is owned, submitted, and produced entirely by the Customer and its Authorized Users. Customer and its Authorized Users shall be fully responsible for the Customer Data submitted, stored, transmitted, used and shared within the Licensed Services including its content, use, accuracy, completeness, and timeliness. Customer is responsible to maintain all Customer Data as accurate, complete, and up-to-date. Customer and its Authorized Users acknowledge and agree that all recording, intercepting, receiving and storing of any data through text messages, video or other communications by them within, through or using the Licensed Services shall be lawful, intentional and result only after full disclosure thereof to the individual patient or other Person(s) affected and with such Person’s full consent (to the extent required by applicable Law). For each product offering contained in the Licensed Services, the Customer shall only transmit Customer Data that is appropriate for each such offering contained in the Licensed Services. Customer represents and warrants that it owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by DocsInk and Processed in accordance with these Terms and Conditions, DocsInk’s use of the Customer Data as permitted under these Terms and Conditions does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any Person or violate any applicable Law. Customer shall comply with all Laws, regulations, industry standards, licensure requirements and ethical obligations that are directly or indirectly applicable to Customer or those with whom or which Customer is affiliated (the “Requirements”); that Customer and its Representatives shall be responsible for complying with the Requirements, obtaining and maintaining all individual consents or authorizations, if applicable, and all other legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view Personal Information and, in particular, individually identifiable health information
(b) DocsInk and its Representatives shall have the right to monitor, store, review and use Customer Data inclusive of individually identifiable health information in connection with the operation or use of the Licensed Services and DocsInk Materials.
(c) DocsInk neither represents, warrants, or guarantees that the Customer Data is accurate, complete, timely, or authentic. Customer and its Authorized Users acknowledge and agree that DocsInk shall not be liable for any claims, losses, and damages resulting from Customer’s and its Authorized User’s access, use, misuse of the Customer Data made available through the Licensed Services, or damages resulting from the access or use of Customer Data posted by other Persons.
4.6 Records. Customer shall keep records and submit reports including information as requested by DocsInk and necessary for the calculation of royalties payable to the AMA by DocsInk. Customer consents to the release of such information to the AMA. Customer further agrees to provide, without delay, additional information that the AMA (as a third-party beneficiary) may reasonably request, to verify the information. Nothing herein shall require Customer to submit or release information that would cause Customer to be in violation of applicable federal or state privacy laws.
5.1 Backups. The Licensed Services do not replace the need for Customer to maintain regular data backups or redundant data archives. DOCSINK HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
5.2 DocsInk Systems. DocsInk will use commercially reasonable data security measures in connection with the Licensed Services.
5.2 Access and Security. Customer shall employ physical, administrative and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Licensed Services.
6. Government Access to Records
To the extent applicable under Section 1861(V)(1)(I) of the Social Security Act, until the expiration of 4 years after the furnishing of services pursuant to these Terms and Conditions, DocsInk shall make available, upon written request to the Secretary of Health and Human Services, or upon request to the Comptroller General, or any of their duly authorized representatives, these Terms and Conditions, any subcontracts, and any books, documents and records of DocsInk that are necessary to certify the nature and extent of the costs claimed to Medicare and/or Medicaid with respect to the Licensed Services provided under these Terms and Conditions. If DocsInk carries out any of its duties under these Terms and Conditions through a subcontract, with a value of $10,000 or more over a 12-month period, with a related organization, such subcontract shall contain a clause to the effect that until the expiration of 4 years after the furnishing of services under that subcontract, the subcontractor shall make available, upon written request to the Secretary or to the Comptroller General, or any of their duly authorized representatives, the subcontract, and, as applicable, such books, documents and records of related organization that are necessary to certify the nature and extent of the costs claimed to Medicare and/or Medicaid with respect to the services provided by the subcontractor. Should either the Secretary of the Department of Health and Human Services or the Comptroller General ever request to examine any books, documents, and/or records of DocsInk or DocsInk’s Subcontractors related to these Terms and Conditions, DocsInk shall immediately notify Customer of such request.
7. Fees; Payment Terms
Customer shall pay DocsInk the fees set forth in Sales Order (“Fees”) and in the MSA.
8. Intellectual Property Rights
8.1 Licensed Services and DocsInk Materials. As between the Parties, all right, title and interest in and to the Licensed Services and other DocsInk Materials, including the graphic user interface, “look and feel” and all other text, design, graphics, logos, icons, images, audio or video clips, downloads, interfaces and code, software, and Intellectual Property Rights therein, are and will remain with property of DocsInk and all Intellectual Property Rights in and to any Third Party Materials are reserved to the respective rights holders in the Third Party Materials. Customer has no right, license or authorization with respect to using any of the Licensed Services or DocsInk Materials (including Third Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license in respect of Third Party Materials, in each case subject to Section 3.2. DocsInk neither warrants nor represents that use of Licensed Services or DocsInk Materials, with the addition of Customer Data, will not infringe rights of third-parties.
8.2 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to DocsInk, its Subcontractors and the DocsInk Personnel as are necessary or useful to perform the Licensed Services; and (b) to DocsInk as are necessary or useful to enforce these Terms and Conditions and exercise its rights and perform its hereunder.
9. Term and Termination
9.1 Term.The term of these Terms and Conditions commences on the Effective Date, and by virtue thereof the Agreement is made effective contemporaneous with the Effective Date, and thereafter the Agreement continues through and until the end of the Term identified on any Sales Order that is open, or any renewal Term of the same, unless terminated earlier pursuant to the MSA or any of the express provisions of these Terms and Conditions. The initial term and any extended terms are collectively the “Term”.
9.2 Termination. In addition to any other express termination right set forth in the MSA:
9.3 Effect of Expiration or Termination. Upon any expiration or termination of these Terms and Conditions, except as expressly otherwise provided in these Terms and Conditions:
(a) All rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate (except that DocsInk’s right to use Customer Data shall survive as long as necessary to facilitate a return thereof to Customer as contemplated below);
(b) DocsInk shall make available for download by Customer for a period of 30-days from the expiration or termination of these Terms and Conditions, in DocsInk’s standard format for the same, “protected health information” within the Customer Data; and following such 30-day period, DocsInk shall have no obligation to retain and may permanently erase all Customer Data and Customer’s Confidential Information from all systems DocsInk directly or indirectly controls; provided however, DocsInk may retain copies of Customer Data and Customer’s Confidential Information that are stored on DocsInk’s IT backup and disaster recovery systems until the ordinary course of deletion thereof subject to the surviving terms of the BAA, as applicable;
(c) Customer shall immediately cease all use of any Licensed Services or DocsInk Materials and (i) promptly return to DocsInk, or at DocsInk’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any DocsInk Materials or DocsInk’s Confidential Information; and (ii) permanently erase all DocsInk Materials and DocsInk’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to DocsInk in a signed written instrument that it has complied with the requirements of this Section 9.3(c); and
(d) DocsInk may disable all Customer and Authorized User access to the Licensed Services and DocsInk Materials.
10. Disclaimer of Warranties
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN IN THESE TERMS AND CONDITIONS AND IN THE MSA, ALL SERVICES AND DOCSINK MATERIALS ARE PROVIDED “AS IS” AND DOCSINK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND DOCSINK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DOCSINK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DOCSINK MATERIALS, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS. The Licensed Services and docsInk Materials do not replace the AMA’s Current Procedural Terminology book or other appropriate coding authority. The coding information contained in the Licensed Services should be used only as a guide.
11.1 Indemnification. Both Parties agree to be fully responsible for, and agree to indemnify, defend and hold the other Party (the “Indemnified Party”), and its agents, and employees harmless against, all third party claims, losses, liabilities, damages, injuries, or expenses resulting from or arising in connection with (each, an “Action”): (i) a breach by either Party (the “Indemnifying Party”) of its obligations, representations or warranties under these Terms and Conditions, (ii) any claim based upon any negligent or willful act or omission by the Indemnifying Party, its agents or employees, or (iii) any third party claim of personal injury or property damage caused by the Indemnifying Party, its agents, or employees, up to its insurance limits. Notwithstanding the foregoing, this provision shall not apply to the BAA. Customer shall also indemnify, defend and hold harmless DocsInk and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “DocsInk Indemnitee”) from and against any and all Losses incurred by such DocsInk Indemnitee arising out of or relating to any Action by any Person (other than an Affiliate of a DocsInk Indemnitee) that arise out of or relate to any: (a) Customer Data, including any Processing of Customer Data by or on behalf of DocsInk in accordance with these Terms and Conditions; or (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including DocsInk’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by DocsInk.
“Losses” as used in this Section 11 means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees.
11.3 Infringement Indemnification. In addition to the foregoing, DocsInk will, at DocsInk’s own expense, indemnify, defend, and hold harmless Customer against third parties’ claim, allegation, or action alleging that any Licensed Services provided under these Terms and Conditions infringe on or misappropriate any United States patent or copyright In the event of any such claim or threatened claim, DocsInk may at its option and expense, do one of the following: (i) procure for Customer the right to continue to use the Licensed Services, (ii) replace or modify the DocsInk Services so they are non-infringing, or (iii) terminate access to the affected Licensed Services and refund all unearned prepaid fees paid by Customer for such affected Licensed Services.
12. Limitations of Liability
12.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL DOCSINK OR ANY OF ITS LICENSORS, SERVICE DOCSINKS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) INACCURACY, INCOMPLETE, LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2 CAP ON MONETARY LIABILITY. EXCLUDING DOCSINK’S OBLIGATIONS UNDER THE BAA IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF DOCSINK AND ITS LICENSORS, SERVICE DOCSINKS AND SUPPLIERS UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID OR PAYABLE BY CUSTOMER TO DOCSINK DURING THE 12 MONTHS PRECEDING THE CLAIM IN RESPECT OF THE SPECIFIC SERVICES GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.3 DISCLAIMERS. THE SERVICES AND DOCSINK MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DOCSINK RESERVES THE RIGHT TO RESTRICT, SUSPEND, OR TERMINATE ACCESS TO THE SERVICES OR DOCSINK MATERIALS OR ANY FEATURE OR PART THEREOF AT ANY TIME. BY USE OF THE SERVICES AND DOCSINK MATERIALS, CUSTOMER HEREBY ACKNOWLEDGES THAT THE SECURITY AND DATA PROTECTION PROVIDED BY DOCSINK IS DEPENDENT, IN PART, UPON ITEMS OUTSIDE THE CONTROL OF THE DOCSINK. SUCH ITEMS INCLUDE, BUT ARE NOT LIMITED TO, AUTHORIZED USER DEVICES, SETTING AND CONFIGURATION OF AUTHORIZED USER DEVICES, AND USE OR OPERATION OF THE SERVICES AND DOCSINK MATERIALS BY AUTHORIZED USERS IN A MANNER NOT IN COMPLIANCE WITH THE NORMS ESTABLISHED BY THE DOCSINK. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT DOCSINK IS NOT LIABLE FOR ANY CUSTOMER DATA WHATSOEVER OR ANY INFORMATION INTERCEPTED OR OBTAINED BY UNAUTHORIZED THIRD PARTIES DUE TO REASONS OUTSIDE OF THE REASONABLE CONTROL OF DOCSINK. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT PROTECTED HEALTH INFORMATION SHOULD NOT BE TRANSMITTED THROUGH ANY SMS MESSAGING FEATURE OF THE SERVICES AS IT IS NOT ENCRYPTED. THE SERVICES AND DOCSINK MATERIALS ONLY PROVIDE A FORUM FOR COMMUNICATION AND INFORMATION-SHARING AND DO NOT PROVIDE MEDICAL OR HEALTH CARE ADVICE, NOR RECOMMEND OR ENDORSE ANY SPECIFIC PHARMACEUTICALS, MEDICAL DEVICES, MEDICAL TESTS, PHYSICIANS, HEALTHCARE PROFESSIONALS OR ESTABLISHMENTS, PRODUCTS, PROCEDURES, “OFF-LABEL” PHARMACEUTICAL USES OR OTHER INFORMATION THAT MAY BE CONTAINED IN THE SERVICES OR DOCSINK MATERIALS. CPT COPYRIGHT 2022 AMERICAN MEDICAL ASSOCIATION. ALL RIGHTS RESERVED.
13. Miscellaneous Provisions from the MSA
The provisions of Section 10 of the MSA are expressly incorporated herein.
The AMA is a third-party beneficiary of the End User Agreement. End User expressly consents to the release of its name to the AMA
16. U.S. Government End User
CPT is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. This agreement does not grant the Federal Government a direct license to use CPT based on FAR 52.227-14 (Data Rights – General) and DFARS 252.227-7015 (Technical Data – Commercial Items).