1. The Services
For the purposes of these Terms, the term “Services” means, collectively, the products, services and offerings available from TPA Stream, including but not limited to the use of TPA Stream’s web-based software (the “Site”) and any Content made available through or with the Services. “Content” means all information and materials, whether in electronic form or otherwise, including but not limited to data, PHI, scripts, algorithms, applications, insights, results, outputs, reports, or software.
2. Terms Applicable to Specific Content or Services
The Services available through the Site or otherwise available from TPA Stream may have additional or different terms and conditions, such as use agreements, end user license agreements, or other agreements or terms, that apply to your access or use of such Services, including the terms and conditions applicable to the use of TPA Stream’s software and related services (hereinafter “Additional Terms”). In the event of a conflict or inconsistency between the Terms and such Additional Terms, the Additional Terms shall control with respect to your access and use of the particular Service to which such Additional Terms apply.
3. Your Rights to Use the Site
Subject to your compliance with the Terms, TPA Stream grants you a non-exclusive, limited, license to access the Site, for its intended use only, and only for your internal business purposes in a manner that is consistent with the Terms.
4. Limitations on Use
Your right to use the Services is conditioned upon compliance with the Terms. Unless specifically authorized by the Terms, you may not: (a) copy, modify, or make derivative works of the Services; (b) sublicense, lease, sell, rent, use or otherwise transfer or make available the Services to any third-party; (c) reverse engineer, decompile, disassemble, or attempt to derive the source code or equivalent of Services; (d) use software except as specifically allowed under its applicable terms, or; (e) remove, alter, cover, or distort any copyright, patent or other attribution on or in any of the Services, including the Site or Content available in or related to the Services.
5. Ownership and Reservation of Rights
5.1 TPA Stream’s Retention of Rights
You acknowledge that as between you and TPA Stream, TPA Stream owns all rights title and interests in the Services, including all Intellectual Property therein. Except as expressly granted in the Terms, TPA Stream retains all rights, title, and interests in and to the Services, including all Intellectual Property related thereto, and nothing in the Terms will confer any license to any TPA Stream Intellectual Property by implication, estoppel, or otherwise. “Intellectual Property” means patents, copyrights, trade secrets, trademarks (including trade names, logos and service marks (collectively the “Marks”)) and know-how, in each case whether registered or unregistered, and including any application(s) for patents or registration for any of these, and the equivalent on a world-wide basis, and in each case all rights related thereto. You may not use TPA Stream’s Marks without the prior review and written approval of TPA Stream.
5.2 Your Retention of Rights
Except as expressly granted in the Terms, You retain all right, title, and interests in and to Your Content, including all Intellectual Property related thereto, and nothing in these terms will confer any license to any of Your Content by implication, estoppel, or otherwise. In order to provide you with the Services, you hereby grant TPA Stream a non-exclusive, worldwide, fully paid-up, royalty-free, license to use Your Content, for the sole purpose of allowing TPA Stream to provide Services, and to develop, troubleshoot, improve, and commercially offer the Services. “Your Content” means all information and materials provided by you or a third party in relation to your use of the Services, whether in electronic form or otherwise, including but not limited to data and PHI, used by you or a third party in conjunction with your use of the Services.
5.3 Option to provide Feedback
You do not have to provide feedback to TPA Stream on its products or services, such as ideas for improvements, changes, bug fixes, workarounds, and other ideas related to current or future products or services (collectively “Feedback”), but if you do provide us with Feedback we have to be free to use it as it is intended. Therefore, if you provide Feedback, you grant TPA Stream a worldwide, perpetual, royalty-free, irrevocable, nonexclusive, fully sublicensable license to use, reproduce, modify, adapt, translate, publish, publicly perform, publicly display, broadcast, transmit and distribute, the Feedback, for any purpose and in any form, medium, or technology now known or later developed. This includes, without limitation, the right to incorporate or implement the Feedback into any TPA Stream product or service, new or existing, and to market, sell, offer to sell, import, sublicense and distribute the Feedback as incorporated or embedded in any product or service, in any manner, without compensation to you. You warrant that: (a) you have the right and authority to grant this license, and; (b) TPA Stream’s exercise of the rights granted pursuant to this license will not infringe or otherwise violate any third party rights. Feedback may include but is not limited to software, data, and other material that may be provided to TPA Stream related to current or future technologies.
5.4 Confidential Information
You may receive or be exposed to certain information, materials, and data related to TPA Stream Services that TPA Stream has designated as or that a reasonable party under the circumstances would consider to be confidential or proprietary (“Confidential Information”). Confidential Information includes without limitation, the Services, including without limitation, Content, software, databases, any TPA Stream API, documentation, specifications, algorithms, and data belonging to TPA Stream or its licensors, and all TPA Stream Intellectual Property Rights. You shall use reasonable care to protect Confidential Information and to prevent any unauthorized use or disclosure of Confidential Information to a third-party. You acknowledge that any unauthorized use of the Services or TPA Stream or its Intellectual Property or unauthorized use or disclosure of Confidential Information will cause TPA Stream irreparable injury for which there are inadequate remedies at law and that TPA Stream is entitled to equitable relief without the need of posting bond in addition to all other remedies available to it.
6. Updates to the Services or Terms
TPA Stream may in its sole discretion modify, discontinue or limit access to the Services, including but not limited to any areas of the Site or access to Content provided on or through the Services without notice. TPA Stream reserves the right to modify the Terms at any time at its sole discretion without notice. The most current Terms may be found by clicking on the Terms of Service link on TPA Stream’s website. Your continued use of the Services following any change in the Terms indicates your assent to the then current Terms. TPA Stream may terminate your right to use the Services without notice in the event you fail to comply with the Terms, including without limitation TPA Stream’s Acceptable Use Policy in Section 14
You warrant that: (a) you have the authority to enter into the Terms; (b) you will comply with all applicable laws and regulations; (c) you will comply with the Terms; (d) Your Content and the use of Your Content in or with the Services shall not infringe the Intellectual Property of a third-party, and; (e) you have the right and authority to grant to TPA Stream all of the licenses and rights set forth in the Terms
You warrant and agree that you will use the Services in accordance with all applicable Regulations. “Regulations” means, in the United States, collectively, the Privacy and Security Regulations promulgated by the United States Department of Health and Human Services (“HHS”) at 45 CFR Parts 160, 162 and 164 that were issued pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended, and the rules and regulations promulgated thereunder (“HIPAA”) and pursuant to the provisions of the Health Information Technology for Economic and Clinical Health Act of 2009, as amended, and the rules and regulations promulgated thereunder (“HITECH”) and similar laws, rules and regulations that may be promulgated by HHS. In jurisdictions outside the United States, “Regulations” means the regulations and legal requirements that relate to the creation, use, sharing, disclosure, and transmittal of healthcare information, data, and procedures, and patient data and information in such jurisdiction. “Protected Health Information” or “PHI” will have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, as applied to the information created, received, maintained or transmitted by you, your users, or another party associated with your use of the Services
You agree to indemnify and hold harmless TPA Stream, its officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, due to or arising out of your intentional misuse of the Services and/or your fraudulent or intentional misrepresentations as it relates to: (a) Your Content or its use in or with the Services; (b) a breach of any of your warranties under the Terms, and; (c) a claim that Your Content or the use of Your Content with the Services infringes on the Intellectual Property of a third party.
EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE, THE SERVICES (INCLUDING BUT NOT LIMITED TO THE SITE), AND ALL CONTENT PROVIDED ON OR THROUGH THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TPA STREAM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHATSOEVER, WHETHER EXPRESS OR IMPLIED, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND ALL CONTENT PROVIDED ON OR THROUGH THE SERVICES. TPA STREAM MAKES NO WARRANTY THAT: (A) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (B) ANY RESULTS OBTAINED FROM THE USE OF THE SERVICES OR ANY CONTENT PROVIDED ON OR THROUGH THE SITE WILL BE ACCURATE OR RELIABLE; (C) THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS; OR (D) THE QUALITY OF ANY SERVICES OR CONTENT PURCHASED OR OBTAINED BY YOU ON OR THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. ANY CONTENT ACCESSED, DOWNLOADED OR OTHERWISE OBTAINED ON OR THROUGH THE USE OF THE SITE IS USED AT YOUR OWN DISCRETION AND RISK. YOU ARE RESPONSIBLE FOR BACKING UP YOUR OWN DATA AND CONTENT, INCLUDING ANY THIRD PARTY CONTENT RELATED TO YOUR USE OF THE SERVICES AND TPA STREAM SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE OR LOSS TO ANY SUCH CONTENT OR DAMAGE OR LOSS TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF CONTENT. TPA STREAM RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO, AND MONITOR THE USE OF, THE SERVICES AND CONTENT PROVIDED ON OR THROUGH THE SITE AT ANY TIME WITHOUT NOTICE.
10. Limitation of Liability
IN NO EVENT SHALL TPA STREAM BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, USE OF DATA, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR INTENTIONAL MISUSE OF, THE SERVICES OR ANY CONTENT PROVIDED ON OR THROUGH THE SERVICES.
11. Exclusions and Limitations
12. Account Information from Third Party Sites
You may direct TPA Stream to retrieve your own information maintained online by third-parties with which you have a customer relationships (“Account Information”). TPA Stream works with one or more online service providers to access this Account Information. TPA Stream makes no effort to review the Account Information for any purpose, including but not limited to accuracy, legality or non-infringement. TPA Stream is not responsible for the products and services offered by or on third-party sites.
TPA Stream cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. TPA Stream cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. For example, when displayed through the Services, Account Information is only as fresh as the time shown, which reflects when the information is obtained from such sites. Such information may be more up-to-date when obtained directly from the relevant sites.
13. Rights You Grant to TPA Stream
By using the Services, you expressly authorize TPA Stream to access your Account Information maintained by identified third parties, on your behalf as your agent. TPA Stream will submit information including usernames and passwords that you provide to log you into the site. You hereby authorize and permit TPA Stream to use and store information submitted by you to the Services (such as account passwords and user names) to accomplish the foregoing and to configure the Service so that it is compatible with the third party sites for which you submit your information. For purposes of this Agreement and solely to provide the Account Information to you as part of the Service, you grant TPA Stream a limited power of attorney, and appoint TPA Stream as your attorney–in–fact and agent, to access third party sites, retrieve and use your Account Information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. You acknowledge and agree that when TPA Stream is accessing and retrieving Account Information from third party sites, TPA Stream is acting as your agent, and not as the agent of or on behalf of the third party. You understand and agree that the Service is not sponsored or endorsed by any third parties accessible through the Service.
15. Acceptable Use Policy
In order to preserve the quality and security of the Services, and out of respect for other users, you agree not to: (a) access or use the Site in any manner that could damage, disable, overburden, or impair any TPA Stream accounts, computer systems, networks, or other users of the Services; (b) attempt to gain unauthorized access to any parts of the Site or any TPA Stream accounts, computer systems or networks; (c) interfere or attempt to interfere with the proper working of the Site or any TPA Stream accounts, computer systems or networks, or; (d) use any robot, spider, scraper or other automated means to access the Site or any TPA Stream accounts, computer systems or networks without TPA Stream’s express written permission. You further agree not to use the Site in a manner that: (a) is false or misleading; (b) is defamatory, derogatory, degrading or harassing of another or constitutes a personal attack; (c) invades another’s privacy or includes, copies or transmits another’s confidential, sensitive or personal information; (d) promotes racism, hatred or harm against any group or individual; (e) is obscene or not in good taste; (f) violates or infringes or promotes the violation or infringement of another’s rights, including Intellectual Property Rights; (g) you do not have the right and authority to do so; (h) violates or promotes the violation of any applicable laws or regulations; (i) contains a solicitation of funds, goods or services, or promotes or advertises goods or services; or (j) introduces any virus, Trojan horse, or other component designed to limit or harm the functionality of a network or computer. TPA Stream may report violators to the relevant authorities and may act under the fullest extent of applicable laws to enforce these terms. TPA Stream retains the right to immediately terminate access to the Services without notice if in its sole determination it believes such termination is necessary to enforce the Terms, for the proper operation or security of the Services, or for the protection of its network, data, Site, the Intellectual Property rights of TPA Stream or a third party.
16. Security and Password Management
If any of the Services require you to open an account, you must complete the registration process by providing us with current, complete and accurate information. You may also be required to choose a password and a user name. Access to and use of password protected or secure areas of the Site are restricted to authorized users only. You agree not to share your password(s), account information, or access to the Site with any other person. You are responsible for maintaining the confidentiality of passwords and account information, and you are responsible for all activities that occur through the authorized use of your passwords or accounts. You agree to notify TPA Stream immediately of any use of your passwords or accounts that you did not authorize or that is not authorized by the Terms.
17. General Terms
Official notices must be delivered by email to TPA Stream, at [email protected], Attn: Legal Department. Such notices will be effective upon delivery as reasonably verified by the delivery service.
17.2 Force Majeure
Neither party will be liable to the other for any failure or delay in performance of an obligation, other than obligations to make payments, arising out of any event or circumstance beyond the reasonable control of that party, including without limitation acts of God, earthquakes, fires, floods, pandemics, power outages, interruptions in telecommunication services, strikes, and governmental actions.
You may not assign or transfer any rights under the Terms, including your licenses to software, including in relation to the sale of a practice or business, to any third party without TPA Stream’s prior written consent. Any unauthorized attempt to do so will be null and void.
17.4 Export Obligations
You may not export, directly or indirectly; any of the Services in violation of any U.S. export laws or regulations.
17.5 Waiver and Severance
TPA Stream’s failure to enforce any provision of the Terms shall not constitute a waiver of such right. If any term of these Terms is found to be unenforceable, that term is to be modified to make that term legal and enforceable, and the balance of the Terms will continue in full force and effect, such change to be made in a manner to maximize the enforcement of the remaining terms.
17.6 Minimum Age Requirement
You must be at least 18 years old or older to use the Services (including the Site).
17.7 Entire Agreement
The Terms, along with any Additional Terms, represent the final agreement between the parties regarding the subject matter, and supersede all prior or contemporaneous agreements, whether written or oral.
17.8 Alternative Dispute Resolution and Choice of Law
Any dispute arising from the Terms or the Services, or otherwise between the parties, that is not resolved within forty five (45) days from a notice of such dispute to the other party, shall be addressed by convening an informal telephonic meeting between the most senior executive representative of each party, within seven (7) days from the end of the 45 day notice period. If the dispute cannot be resolved during such meeting, and after thirty (30) days written notice of such failure to reach a resolution, if such dispute is not resolved within such 30-day period, the parties agree to submit and settle the dispute by arbitration administered by the American Arbitration Association Alternative Dispute Resolution Service under its Commercial Arbitration Rules. The arbitration shall proceed before a panel of three (3) arbitrators, with one arbitrator selected by each party and the third being selected by mutual agreement of the parties. The arbitration shall proceed in Cleveland, OH, under the laws of the State of Ohio without regard to principles of conflicts of law. Judgment on any award rendered by the panel of arbitrators may be entered in any court of competent jurisdiction, located in Cleveland or Cuyahoga County, OH, and the Parties hereby consent to personal jurisdiction and venue therein. Any action relating to this Agreement must be commenced within one (1) year after the date upon which the cause of action accrued, or within the statute of limitations provided by the above agreed upon choice of law, whichever is less. The parties hereby waive any claim of lack of jurisdiction or inconvenient forum. BOTH PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION BY OR AGAINST EITHER PARTY RELATED TO THE SERVICES OR THE TERMS. THE PREVAILING PARTY IN ANY LEGAL ACTION SHALL BE ENTITLED TO RECOVER REASONABLE ATTORNEY’S FEES AND COSTS. To the extent allowed by law, you and TPA Stream agree that any proceedings to resolve or litigate any dispute, whether in arbitration, in court, or otherwise, will be conducted solely on an individual basis, and that neither you nor TPA Stream will seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which you or TPA Stream acts or proposes to act in a representative capacity. You and TPA Stream further agree that no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of you, TPA Stream, and all parties to any such proceeding. The provisions of this section are to be enforced to the maximum extent legally available.