1. ACCEPTANCE OF TERMS
eRECORDS provides its services to you, an individual or an individual acting on behalf of a company, an owner of a company, a partner or an associate (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/wfp-phg-tos.html. By signing any agreements or proposals addressed to You, agreeing to pay for an invoice that reference this Agreement or receipt of paid invoice that reference this Agreement, 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
eRECORDS provides assistance in assessing, monitoring and improving your business or practice by providing access to eRECORDS support staff via phone and email, who leverage eRECORDS proprietary and confidential expertise, tools & processes (the “Service”). You understand and agree that the Service is provided "AS-IS" and that eRECORDS assumes no responsibility. You must provide and are responsible for all equipment necessary to access the Service and any necessary systems and technologies. The service is not intended to provide legal, regulatory, tax or financial advice.
Worry Free™ Program for Practice Heath Grade™ ("PHG") offers the following services;
For your needs that does not fit into any of our current packaged offerings, we may work with you to scope out a customize service engagement which is detailed in a separate Statement Of Work or Proposal document.
Our goal is to help as many doctors and dentists in understanding and improving their practice. In support of that goal, we continuously strive to be efficient and effective in our services to You which in turn keep the cost and time requirement to be minimal. Consistent with these goals, You agreed to do the following;
As an on-going support to our customers, we include complimentary Associate membership to “Worry Free™ Dental Network” for those who utilize any of our products and services. Some of the key benefits include;
3. ACCURATE REPRESENTATION
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 requested by eRECORDS; (ii) maintain and provide updates to this information to keep it true, accurate, current, and complete; (iii) all applicants named in the EHR Incentive program applications are doing so voluntarily and any assignment of payment are also done voluntarily by the applicant. 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 with all pending payments immediately due.
4. PRICING & PAYMENT
For Services offered the following terms apply, unless eRECORDS notifies you otherwise in writing:
4.1 Agreement(s) or Proposal(s) signed by you will serve as an invoice for any payments due now or in future. There may not be a separate invoice sent to you. However, paid invoice will be sent to you, if requested, for your records.
4.2 Payments are due to us in U.S. dollars in the method specified in the agreement.
4.3 Any portion of fees that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Any returned checks will charged $25 or maximum allowed by law, whichever is greater.
4.4 Any cancellation or rescheduling of appointments will be charged the rescheduling or cancellation fees.
5. TERM; TERMINATION
5.1 Unless stated otherwise in writing, this Agreement is for supporting You with onetime assessment of your practice's health.
5.2 This Agreement shall commence upon acceptance by You and shall remain in full force and effect until expiration. eRECORDS or You may terminate this Agreement anytime, with or without cause, with notification via email or phone. You must pay any balance due to eRECORDS immediately with the termination, including any payments tied to future milestone or date.
5.3 In the event of any termination or expiration of this Agreement;
a. All pending payments will be immediately due, including any future milestone or date based payments.
b. There is no refund, full or partial, if terminated by You or agreement has expired.
c. The following provisions shall survive: Article 5, Sections 5.3, and Article 6, and Article 8, and Article 9, and Articles 10, 11 and 13.
6.1 As part of Service provided to You, a need to disclose proprietary or confidential information may arise. The recipient of such information agrees to use the proprietary or confidential information only for the purpose of completing the Service and shall not disclose to any third party without the written consent by the other party. eRECORDS may disclose such information to those of its employees and representatives with a need to know such information in support of Services provided.
6.2 This Agreement, pricing or any other information such as processes, templates and documentations provided or conveyed by eRECORDS related to the Services are considered to be confidential information to eRECORDS.
6.3 No Protected Health Information (“PHI”) is required to fulfill the Services and should not be provided to any eRECORDS employees or representatives unless a written request by President of eRECORDS and proper execution of Business Associate agreement.
8. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
8.1 eRECORDS, Inc., eRECORDS, or its licensors, are the exclusive owner of the Services and all constituent parts, including without limitation, all Software code, templates, questionnaires, dashboards, benchmarks, performance indicators, reports, 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.
8.2 Content and Submissions. Any data (as part of PHG), 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 use, 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.
9. 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.
11. 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.
12. 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.
13.1 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.
13.2 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.
13.3 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.
13.4 Entire Agreement. This Agreement 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.
13.5 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.
13.6 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.
13.7 Third Party Beneficiaries. eRECORDS’ third party licensors and information providers are intended beneficiaries of this Agreement.
13.8 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.
13.9 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.
13.10 Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
14. CONTACTING eRECORDS, Inc.
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: May 24, 2017