1. ACCEPTANCE OF TERMS
eRECORDS, Inc. welcomes you. eRECORDS provides its services to you, an individual or an individual acting on behalf of a company (collectively “You” or “Your”), subject to the following Terms of Service Agreement ("Agreement"), which may be updated by us from time to time without notice to You. You can review the most current version of the Agreement at any time at: http://www.eRECORDS.com. By checking the box and clicking the "Submit"/”Join”/”OK”/”Login” button to process Your acceptance, or by otherwise accessing web site and using the services, You agree to be bound by this Agreement. Your use of the services is conditioned on Your acceptance of the terms and conditions contained in this Agreement.
2. DESCRIPTION OF SERVICES; LICENSE
eRECORDS provides users with a method of planning and managing Your EHR incentive and Meaningful Use goals, via access to the eRECORDS websites (i.e. http://www.eRecords.com and http://www.WFDashboard.com) and access to eRECORDS support staff (the “Service”). Subject to the Agreement, eRECORDS hereby grants to You a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to access and use the Service. You also understand and agree that the Service may include certain communications from eRECORDS, such as service announcements, administrative messages and product information, and that these communications are considered part of eRECORDS membership and You will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augments or enhances the current Service, including the release of new eRECORDS services, shall be subject to this Agreement. You understand and agree that the Service is provided "AS-IS" and that eRECORDS assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user information or personalization settings. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible any fees you agreed to. In addition, You must provide and are responsible for all equipment necessary to access the Service. The service is meant as an aid to assist you in administrating, planning and monitoring of Meaningful Use goals. It is not intended to provide legal, regulatory or financial advice.
You represent that You are of legal age and are not a person barred from receiving services under the laws of the United States or other applicable jurisdictions and agree to: (i) provide true, accurate, current, and complete information as prompted by the registration form; (ii) maintain and update this information to keep it true, accurate, current, and complete; (iii) comply with eRECORDS’ then-current Acceptable Use Policy. If any information provided is untrue, inaccurate, not current, or incomplete, eRECORDS has the right to terminate this Agreement immediately and refuse any and all current or future uses of the Services. You will receive a designated password and account upon completing the registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under Your account. You agree to immediately notify eRECORDS of any unauthorized use of Your password or account or of any other breach of security. All of the foregoing information is collectively referred to as "Registration Data."
4. PRICING & PAYMENT
For Services offered on a payment or subscription basis, the following terms apply, unless eRECORDS notifies you otherwise in writing. This Agreement also incorporates by reference and includes program ordering and payment terms provided to you on the website for the Services:
4.1 Payments will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the website for the Services.
4.2 You must pay with one of the following:
a. A valid credit card acceptable to eRECORDS;
b. A valid debit card acceptable to eRECORDS;
c. Sufficient funds in a checking or savings account to cover an electronic debit of the payment due; or
d. By another payment option eRECORDS provides to you in writing.
4.3 If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your account and refuse any use of the Services.
4.4 eRECORDS will automatically renew your monthly or annual Services at the current rates, unless the Services are cancelled or terminated under this Agreement.
4.5 Additional cancellation or renewal terms may be provided to you on the website for the Services.
5. TERM; TERMINATION
This Agreement shall commence upon acceptance by You and shall remain in full force and effect unless and until terminated. You may terminate this Agreement by sending a cancellation email to support@eRECORDS.com at least thrity (30) days prior to the end of the current term. eRECORDS may terminate this Agreement with or without cause in its sole discretion at any time with or without notice. Upon termination of this Agreement, eRECORDS will maintain Registration Data for thirty (30) days.
6. USER RESTRICTIONS
Except as expressly set forth above, You shall not transmit, display, copy, sell, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute or otherwise exploit for any commercial purposes (or allow Users or any other third party to transmit, make available or exploit for any commercial purposes) the Services or the content thereof to any third party. Except as expressly permitted by eRECORDS, You shall not (nor shall You permit or enable any of Your employees or any other third party to) under any circumstances modify, alter or create derivative works as defined in the copyright laws of the United States, of any aspect or portion of the Services. Nor shall You: (a) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or discover any source code or algorithms of any aspect or portion of the Services; (b) attempt to access any of eRECORDS’ systems, programs or data that are not made available for public use; or (c) access the Service by any means other than through the interface that is provided by eRECORDS for use in accessing the Service.
7. LINKS; DEALINGS WITH THIRD PARTIES
The Service may provide links to other World Wide Web sites or resources. You acknowledge and agree that eRECORDS is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You further acknowledge and agree that eRECORDS shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
8. STORAGE AND ACCESS
You agree that eRECORDS has no responsibility or liability for the deletion or failure to store any information and other communications or other content maintained or transmitted by the Service.
9. MODIFICATIONS TO THE SERVICE OR AGREEMENT
eRECORDS reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that eRECORDS shall not be liable to You or to any third party for any modification, suspension or discontinuance of the Service. eRECORDS may specify from time to time the version(s) of related products required in order to use the Service (e.g. supported browser versions). You agree that eRECORDS may, in its sole discretion, modify the Agreement. Your continued use of any of the Service shall constitute Your acceptance of the Agreement with the new modifications. If You do not agree to any of such changes, You may terminate the Agreement and immediately cease all access and use of the Service. You agree that such termination will be Your exclusive remedy if You do not wish to abide by any changes to the Agreement.
11. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
11.1 eRECORDS, Inc., eRECORDS, or its licensors, are the exclusive owner of the Services and all constituent parts, including without limitation, all Software code, all content on the websites, HTML scripts, the uniform resource locators (URLs) for the websites, all eRECORDS trademarks, service marks and logos, all enhancements and improvements thereto, and all patent, copyright, trademark, trade secret, trade dress and other intellectual property rights therein throughout the world. You shall not reverse engineer, decompile, or create derivative works of the eRECORDS Services. You agree that the trade names, trademarks, service marks, and trade dress used on or in connection with or associated with eRECORDS and further including the eRECORDS websites URLs (collectively, the “eRECORDS Marks”) and any goodwill attached to, or generated by, such eRECORDS Marks shall be owned exclusively by eRECORDS and shall inure solely to the benefit of eRECORDS. You shall not include eRECORDS Marks into Your corporate name and/or domain name. You shall also not obtain, use, register, or otherwise acquire any trade names, trademarks, service marks, and/or trade dress that are confusingly similar to eRECORDS Marks. You shall have no claim of ownership in the eRECORDS Service, any of its constituent parts, any enhancements thereto, or intellectual property rights therein. The Agreement does not limit any rights that eRECORDS may have under trade secret, copyright, patent, trademark or other laws. You acknowledge and agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information that may have been presented to You through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
11.2 Content and Submissions. Any comments, feedback, suggestions and ideas disclosed, submitted or offered to eRECORDS in connection with Your use of the Service (collectively "Submissions") shall be owned exclusively by eRECORDS. With Your written consent, eRECORDS shall have the exclusive right to republish any and all Submissions, including the right to identify User as the author of such Submissions for any purpose including advertising and/or promotional purposes. eRECORDS shall have the right to disclose or publish without Your written consent any content or Submissions collected and/or generated from the Service as long as such information is disclosed or published in ways not directly attributable to any individual user.
12. WARRANTY DISCLAIMERS
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ERECORDS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ERECORDS AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS OR RESULT IN REVENUES OR PROFITS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, AND (iv) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. ERECORDS AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT OR THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THIS SERVICE, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF CONTENT THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ERECORDS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
You agree to indemnify and hold eRECORDS and its subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party in connection with or arising out of Your use of the Service, Your violation of any terms or conditions of this Agreement, Your violation of applicable laws, or Your violation of any rights of another person or entity.
14. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ERECORDS AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF ERECORDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, CONTENT, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (e) ANY OTHER MATTER RELATING TO THE SERVICE. YOU ALSO AGREE THAT ERECORDS WILL NOT BE LIABLE FOR ANY (i) INTERRUPTION OF BUSINESS, (ii) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEBSITE(S) YOU ACCESS THROUGH THIS SERVICE ; (iii) CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; OR (iv) EVENTS BEYOND ERECORDS' REASONABLE CONTROL. IN NO EVENT SHALL ERECORDS' MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO ERECORDS FOR THE SERVICE, BUT IN NO EVENT SHALL THAT AMOUNT BE GREATER THAN ONE DOLLAR ($1.00). YOU SHALL NOT BE ENTITLED UNDER LOCAL LAW OR OTHERWISE TO RECEIVE ANY PAYMENT FROM ERECORDS, WHETHER FOR ACTUAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, COSTS OR EXPENSES AS A RESULT OF EXPIRATION OR TERMINATION OF THE AGREEMENT OR TERMINATION OF YOUR ACCESS TO THE SERVICE, ALL OF WHICH YOU EXPRESSLY WAIVE. YOU ACKNOWLEDGE THAT YOUR ACCEPTANCE OF THIS SECTION HAS MATERIALLY INDUCED ERECORDS TO ENTER INTO THE AGREEMENT. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, ERECORDS’ LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
15. FURTHER LIMITATION OF LIABILITY
eRECORDS will not be liable in any way (a) for any errors or omissions in any content, advise, Services or data, or for any loss or damage of any kind incurred as a result of any data transmitted via the Service; (b) if You are exposed to content, photographs or data that are offensive, indecent or objectionable; or (c) for any violations of copyright or other proprietary rights as a result of Your use of the Service.
16. GOVERNMENT END USERS
If the Service and related documentation are supplied to or licensed by or on behalf of the United States Government, then the Service is deemed to be "commercial software" as that term is used in the Federal Acquisition Regulation system. Rights of the United States shall not exceed the minimum rights set forth in FAR 52.227-19 for "restricted computer software." All other terms and conditions of this Agreement apply.
eRECORDS may provide You with notice, including those regarding changes to this Agreement, by either electronic mail (email), regular mail, or postings on the Service. Such notices shall be effective upon dispatch. Notices provided by You shall be sufficient only if: (i) personally delivered; (ii) delivered by a major commercial rapid delivery courier service; (iii) mailed, postage or charges prepaid, by certified or registered mail, return receipt requested; or (iv) mailed electronically. Notices by You shall be deemed effective upon receipt.
18. RELATIONSHIP OF PARTIES.
The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, and is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose, and neither party has the power or authority as agent, employee, or any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
19.1 Prohibition Against Assignment. Neither this Agreement nor any rights, licenses, or obligations hereunder, may be assigned by You without the prior written consent of eRECORDS. Any attempted assignment in violation of this Section will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties' successors and assigns.
19.2 Choice of Law, Forum and Attorneys’ Fees. This Agreement and the relationship between You and eRECORDS shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and eRECORDS agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Los Angeles, California. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys' fees.
19.3 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, or this Agreement, must be filed within one (1) year after such claim or cause of action arose or be forever barred.
19.4 Entire Agreement. This Agreement, which includes the Acceptable Use Policy, constitutes the entire agreement between You and eRECORDS concerning Your use of the Service, superseding any prior agreements between You and eRECORDS with respect to the Service. With respect to Your use of other authorized eRECORDS software, services, affiliate services, affiliate devices or equipment, third-party content, or third-party software, You also may be subject to additional terms and conditions.
19.5 Waiver and Severability of Terms. The failure of eRECORDS to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
19.6 Publicity. You acknowledges and agree that during and after the term of this Agreement, eRECORDS shall have the right to use Your name, logo, URL, website screen captures, and description in eRECORDS’ marketing, publicity, and promotional activities and materials, including, but not limited to, press releases, marketing collateral, and print, radio and television advertisements. The parties understand and agree, however, that nothing in this Agreement shall obligate eRECORDS to actually use Your name, statements, or testimonials in connection with eRECORDS’ marketing.
19.7 Third Party Beneficiaries. eRECORDS’ third party licensors and information providers are intended beneficiaries of this Agreement.
19.8 Force Majeure. Under no circumstances shall eRECORDS be liable for any delay or failure in performance under this Agreement resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, electricity, or air conditioning.
19.9 Amendment. eRECORDS may modify this Agreement at any time, and such modifications shall be effective immediately with or without notice to You. Your continued access or use of the Services shall be deemed Your conclusive acceptance of the modified Agreement.
19.10 Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
20. CONTACTING eRECORDS, Inc.
eRECORDS welcomes your comments and suggestions. You may contact us at:
1317 S. Diamond Bar Blvd, #4096
Diamond Bar, CA 91765
THE PERSON ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOU.
Date last updated:February 1, 2012