Data Driven Practice Terms & Conditions
As part of your registration process or by using the Data Driven Practice System (“Service”), you are agreeing to be bound by the following terms and conditions (“Terms”) that form a contract (“Agreement”) between you and the Data Driven Practice that governs your access and use of the Data Driven Practice online services and any related software that you may install on your computer(s), as well as The Data Driven Practice’s privacy policy and any other legal notices, conditions or guidelines provided by The Data Driven Practice or posted on www.thedatadrivenpractice.com (“Site”) as defined herein.
If you are using the Service on behalf of an organization, you are agreeing to these Terms for that organization and promising to The Data Driven Practice that you have the authority to bind that organization to the Terms. You may use the Service only in compliance with these Terms and only if you have the power to form a contract between you and The Data Driven Practice and are not barred under any applicable laws from doing so.
You agree to use the Service at your own risk. Violation of any of the terms and conditions below will result in the termination of your DDP account (“Account”); including but not limited to the deletion, forfeiture, or relinquishment of any information or data (“Content”) added to the Service.
IF YOU DO NOT HAVE THE AUTHORITY OR DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICE.
Should you have any questions concerning these Terms, please contact us at [email protected]
CHANGES TO THE TERMS AND CONDITIONS
We reserve the right to update and change the Terms at any time without notice. Notice of changes may be provided via the Service, the Site, or email communication. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms. Continued use of the Service after any such changes shall constitute your consent to such changes. Therefore, we encourage you to review the Terms for updates whenever you visit the Site. Your continued access or use of any portion of the Service constitutes your acceptance of such changes. If you don't agree to any of the changes, you must cancel and stop using the Service.
You can review the most current version of the Terms at any time by visiting www.thedatadrivenpractice.com/terms.
ACCESS TO SERVICE/LICENSE
You may use the Service, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws. The Data Driven Practice hereby grants you, during the term of this Agreement, a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by The Data Driven Practice and its third party licensors or suppliers (collectively, “Licensors”). In addition to the other restriction contained herein, you agree not to license, sublicense, sell, resell, transfer assign, distribute or make any commercial exploitation of the Service, not to make the Service available to any third-parties, or do the same with any content that is provided by, or generated in connection with, the Service (collectively, “Service Content”).
1. You may use the Service, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws. The Data Driven Practice hereby grants you, during the term of this Agreement, a non-exclusive, non-You agree that The Data Driven Practice may publish, modify and amend any and all Service Content in any manner, including on any website that is managed, or controlled by us, including Service Content consisting of promotions, advertisements and listings for non-competing local businesses, or products and services offered by us.
2. Unless otherwise agreed by The Data Driven Practice, this Agreement, and the license granted herein, will be in force beginning on the start date of your subscription for the Service and will continue until you cancel the Service in accordance with The Data Driven Practice’s cancellation policy (“Cancellation Policy”) as defined herein under the section titled, “Cancellation Policy and Termination.”
ACCOUNT TERMS
1. To obtain access to the Service, you must complete a registration form and designate a user ID and password (become a “Registered User”). When registering with The Data Driven Practice you must: (i) provide true, accurate, current and complete information about yourself as requested by the Service's registration form, including your legal full name, a valid email address, and any other information requested in order to complete the signup process (“Registration Data”). and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. The Data Driven Practice may withdraw such approval at any time in its sole discretion, with or without cause.
2. You must be 13 years or older to use this Service.
3. You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
4. Your login may only be used by one person; a single login shared by multiple people is not permitted and may result in Account termination.
You may create separate logins for as many people as needed.
5. You are responsible for maintaining the security of your Account and password. You must keep your account and passwords confidential and not authorize any third party to access or use the Service on your behalf, unless we provide an approved mechanism for such use. You must contact us right away if you suspect misuse of your Account or any security breach in the Service. The Data Driven Practice cannot and will not be liable for any loss or damage from failure to comply with this security obligation.
6. You are responsible for all activity that occurs under your Account. You may not use the Service for any illegal or unauthorized purpose. You must not utilize the Service to violate any laws in your jurisdiction (including but not limited to copyright laws).
7. If a third party such as an employer, or consultant gave you your account, that party has rights to your account and may: manage your account, reset your password, or suspend or cancel your account; view your account's usage and profile data, including how and when your account is used; and read or store Content in your account. If you are an individual Registered User of the Service, and the domain of the primary email address associated with your account is owned by an organization and was assigned to you as an employee, contractor or member of such organization, and that organization wishes to establishes a commercial relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the commercial relationship between The Data Driven Practice and such organization and controlled by such organization.
CONSENT COMMUNICATION AND SERVICES
1. By registering with The Data Driven Practice, you understand that we may send you communications or data regarding the Services, including but not limited to (i) notices about your use of the Services, including any notices concerning violations of use, (ii) updates, and (iii) promotional information and materials regarding The Data Driven Practice's products and services, via electronic mail. We give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided at the bottom of each email.
When ordering or registering on our Site, as appropriate, you may be asked to enter your name, e-mail address, phone number, industry, job role and/or other necessary details. Any of the information we collect from you may be used in one of the following ways:
a. To personalize your experience (your information helps us to better respond to your individual needs).
b. To improve customer service (your information helps us to more effectively respond to your customer service requests and support needs).
c. To process transactions. Please note, your information, whether public or private, will not be sold, exchanged, transferred, or given to any other company for any reason whatsoever, without your consent, other than for the express purpose of delivering the purchased product or service requested.
d. To send periodic emails: the email address you provide for order processing or any other purpose, may be used to send you information and updates pertaining to your order, in addition to receiving occasional company news, updates, blog articles, related product or service information, and suchlike.
e. To use testimonials in written, verbal, or video forms for the promotion of The Data Driven Practice on our website, social media platforms and emails.
2. In connection with the provision of technical support, training and other Services, you agree that The Data Driven Practice may remotely log-in to your computers, devices and systems for purposes of providing the support, training or other Services, including, without limitation, technical troubleshooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. You further agree that The Data Driven Practice may also remotely log-in at any time as necessary or appropriate to maintain our Services.
3. The Service may require you to give The Data Driven Practice access to or require you to provide login information and password information for accounts or services you may have with third party providers. When you provide this information to The Data Driven Practice or give us access to these third party accounts, you agree that you have read all contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give The Data Driven Practice such access, login information and passwords.
4. The Data Driven Practice may record calls between you and our agents regarding the Service (“Service Calls”) and in connection with the Service, incoming calls, on your behalf as a Service, from, among others, your prospective clients (the “Inbound Calls” and, collectively with Service Calls, “Call Recording”). You consent to Call Recording and acknowledge you are responsible for notifying your employees and agents who may be recorded in a Service Call or Inbound Call (the “Recorded Persons”) and complying with all applicable laws, rules and regulations regarding call recording and privacy. It is your sole responsibility to provide and/or obtain, and you covenant that you will provide and/or obtain, all notices and permissions relating to Recorded Persons as may be required by applicable laws and regulations. You acknowledge and agree that if you collect information from Recorded Persons that may be subject to a privilege (including, but not limited to, attorney-client or doctor-patient privilege), you assume the full risk of using a third party provider for Call Recording, including any preclusion of the application of such privilege with respect to information exchanged during the Call Recording with the Recorded Persons.
CONTENT OWNERSHIP
1. We claim no intellectual property rights over the Content you provide to the Service. Any Content provided remains yours. You, not The Data Driven Practice, have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Content, and, except as provided in this Agreement or as required by law, The Data Driven Practice shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Content, or for the improper or erroneous upload or extraction of any Content. The Data Driven Practice reserves the right to withhold, remove and/or discard Content without notice for any breach, including, without limitation, your non-payment as specified in this Agreement. This retention of ownership does not constitute a guarantee that The Data Driven Practice will at all times retain the Content in your Account. All Content may be subject to deletion, forfeiture, or relinquishment pursuant to the other terms set forth herein.
2. Except for material that we license to you, we don't claim ownership of any Content that is transmitted, stored, or processed in your account(s). We also don't control, verify, or endorse the Content that you and others make available on the Service. The Data Driven Practice and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service.
3. We provide functions that allow you to control who may access your Content. If you enable these features that allow you to share the Content with others, anyone you've shared Content with (including the general public, in certain circumstances) may have access to your Content.
4. You hereby grant The Data Driven Practice and its suppliers, contractors, affiliates, or licensors (collectively, “Assigns”) the right, to use, modify, adapt, reproduce, distribute, display and disclose Content posted on the Service solely to the extent necessary to provide the Service or as otherwise permitted by these Terms.
5. You represent and warrant that: (i) you have all the rights to the Content necessary for you to use the Service and to grant the rights in this Section; and, (ii) the storage, use or transmission of the Content doesn't violate any law or these Terms.
You will:
a. be solely responsible for the nature, quality and accuracy of the Content;
b. ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations;
c. promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. The Data Driven Practice will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
INTELLECTUAL PROPERTY NOTICES AND COPYRIGHT
1. All contents of the Site and Service including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are Copyright © The Data Driven Practice, and/or the proprietary property of its Assigns. All Rights Reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements without express written permission from The Data Driven Practice.
2. Other than the rights explicitly granted to you to use the Service in accordance with these Terms, The Data Driven Practice or its Assigns own and reserve all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, including all associated intellectual property rights, in and to the The Data Driven Practice technology, the Service Content along with the Service and any suggestions, ideas, enhancement requests, feedback, recommendations (collectively, “Feedback”) or other information provided by you or any other party relating to the Service.
3. The set-up, configuration, processes, organization, and method of operation of the Service constitute the trade secrets, confidential and proprietary information, and intellectual property of The Data Driven Practice. The creation of your Account and your access to the Service constitute your authorized access to The Data Driven Practice’s trade secrets, confidential and proprietary information, and intellectual property, all of which are not generally known or available to the public. Any attempt by you to replicate, disseminate, or disclose the trade secrets, confidential and proprietary information, and intellectual property of The Data Driven Practice is a misappropriation of The Data Driven Practice’s property. If such misappropriation occurs, The Data Driven Practice may, among other legal remedies, seek injunctive relief in any court of competent jurisdiction, without bond, and may take any other action set forth in these terms. The termination of your Account constitutes The Data Driven Practice’s revocation of your authorized access to its trade secrets, confidential and proprietary information, and intellectual property.
4. The trademarks, trade names, service names or logos associated with the Service (collectively, the “Marks”) are trademarks of The Data Driven Practice or its licensors, and no right or license is granted to use them. You hereby acknowledge The Data Driven Practice or its licensors' perpetual and exclusive ownership of and title to the Marks and the goodwill attaching thereto. You agree not to copy, imitate, use or attempt to register any Mark that is confusingly or deceptively similar to the Marks, in whole or in part, without The Data Driven Practice's prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners.
5. You must immediately notify The Data Driven Practice in writing of any unauthorized use of any Content, any Account or the Service that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide The Data Driven Practice with such cooperation and assistance related to any such unauthorized use as The Data Driven Practice may reasonably request.
6. This Agreement is not a sale to you and does not convey to you any rights of ownership in or related to the Service, The Data Driven Practice technology, the Service Content, or The Data Driven Practice’s intellectual property. In whole or in part, any and all software, algorithms, applications, source codes, structures, sequences, routines, subroutines and all the related programming, engineering or technological matter developed or created by The Data Driven Practice or its Assigns (along with all copyrights, patents, patient applications, trademarks and other proprietary rights arising in connection therewith) are and shall remain the sole, exclusive and perpetual property of The Data Driven Practice or its Assigns.
PAYMENT, REFUNDS, UPGRADING AND DOWNGRADING TERMS
1. A valid credit card is required for all Accounts. You must be authorized to use the payment method that you enter when you create a billing account. You authorize us to charge you for the Service using your payment method and for any paid feature of the Service that you choose to sign up for or use while these Terms are in force.
2. Payments are due monthly, thirty (30) days from your registration date. If payment is not received by The Data Driven Practice on the due date, user's account will be frozen, inaccessible, and all shared links will be turned off until all outstanding payments have been processed by The Data Driven Practice. Users retain the responsibility for settling all outstanding balances in a timely manner and maintaining updated billing information. If not complied with, at the end of ninety (90) days, user's account will be deactivated, and all data will no longer be retrievable.
3. Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1 percent of the unpaid amount each month or the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.
4. You must keep all information in your billing account current. You may change your payment method at any time by emailing [email protected] or calling 833-693-2821. If you tell us to stop using your payment method and we no longer receive payment from you for the paid Service, we may cancel that Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.
5. By submitting your credit/debit card data to The Data Driven Practice, you authorize The Data Driven Practice in its complete discretion to submit a financial transaction(s) to your issuing bank for settlement. You agree that once The Data Driven Practice has approved or declined your transaction, The Data Driven Practice has fully performed under the terms of this Agreement. You agree to contact The Data Driven Practice in the event that you desire to cancel any recurring charge, prior to the next billing cycle. Should you fail to contact The Data Driven Practice, you agree to indemnify and hold The Data Driven Practice harmless from any losses or damages that you suffer as a result of a recurring charge. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact The Data Driven Practice prior to the next billing cycle. Upon proper notification, The Data Driven Practice, in its sole discretion may issue a credit to your Bank Card.
6. The Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open Account. In order to treat everyone equally, no exceptions will be made. Once you provide billing information The Data Driven Practice will charge any fees and the first payment due on signing and thereafter on that same day monthly. For example, if you signed up on the 20th of the month on our monthly subscription plan, The Data Driven Practice will bill you for your implementation charge and the first months’ subscription that day and on the 20th of each subsequent month for the service. Your billing cycle runs on the 20th of every month thereafter until cancelled.
7. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. Further, The Data Driven Practice shall not be liable for any federal or state tax liability or other liability that may be assessed in conjunction with any employee reward system used in conjunction with the Service.
8. All charges made via credit card will be made in US dollar currency. The Data Driven Practice reserves the right to change the quoted currency at any time. The Data Driven Practice is not responsible for any foreign transaction, internalization or other credit card fees regarding the charge for your Account.
9. In addition to any fees, you may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges, all of which are dependent on your agreements with your supplemental service providers.
10. For any upgrade or downgrade in plan level, the credit card provided for the Service will automatically be charged the new rate on the next billing cycle.
11. Downgrading your Service may cause the loss of Content, features, or capacity of your Account. The Data Driven Practice does not accept any liability for such loss.
12. You acknowledge that the program services do not include travel, lodging, and other travel expenses incurred by you and shall be your sole responsibility and shall be in addition to the fee of the program.
CANCELLATION POLICY AND TERMINATION
1. You are solely responsible for properly canceling your Account per this Cancellation Policy. You must email [email protected] to cancel your Account. We are always trying to improve and would greatly appreciate it if you could include details of how we can improve in the email. Once received, your Account Success Coach may reach out to the subscription owner to finalize the off-boarding process. There are no refunds or credits for partial months, quarters or years of service.
2. If you cancel the Service before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again.
3. The Data Driven Practice, in its sole discretion, has the right to suspend or terminate your Account and refuse any and all current or future use of the Service, or any other DDP service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or revoked access, and the forfeiture and relinquishment of all Content in your Account.
4. The Data Driven Practice reserves the right to refuse service to anyone for any reason at any time.
5. If you receive the Service as an integrated part of the services provided by another party that has contracted with The Data Driven Practice to provide the Service as a bundled part of services provided by that party (an “Enterprise Affiliate”), then you acknowledge and agree that the Enterprise Affiliate is responsible for keeping your account payments current and any failure to do so may result in cancellation of your access to the Service. You acknowledge and agree that the Enterprise Affiliate has the authority and ability to cancel your access to the Service by following the same procedures outlined above.
6. We reserve the right, to temporarily suspend or terminate your access to the Service at any time in our sole discretion, in the event that any of the following apply: (i) the actual or suspected violation by you of these Terms; (ii) you use the Services in a manner that may cause The Data Driven Practice to have legal liability or disrupt others' use of the Services; (iii) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (iv) scheduled downtime and recurring downtime; (v) any breach of your payment obligations; or (vi) unplanned technical problems and outages.
7. If, in The Data Driven Practice's determination, the suspension might be indefinite and/or The Data Driven Practice has elected to terminate your access to the Service, The Data Driven Practice will use commercially reasonable efforts to notify you through the Service. You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the Content that is stored with the Service. Upon termination by The Data Driven Practice, for reasons other than cause, or at your direction, you may request access to your Content, which we will make available for an additional fee. You must make such request within thirty (30) days following termination. Otherwise, any Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain any data stored in your Account.
8. In addition to other termination provisions, if your Account it not currently subject to a paid subscription plan with us, we at our discretion may terminate your account if: (i) you do not engage in any activity in your account within thirty (30) days after becoming a Registered User, or (ii) you do not engage in any activity in your account for any period of one-hundred and twenty (120) consecutive days. In the event of such termination, any Content you may have stored will be lost.
MODIFICATIONS TO THE SERVICE AND PRICES
1. The Data Driven Practice reserves the right, in its sole discretion, to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice at any time, including unscheduled deployments of changes, updates or enhancements to the Service.
2. Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days notice from us. We'll notify you in advance, either through the Service or to the email address you have most recently provided to us, if we change the price of the Service. If there's a specific length and price for your Service offer, that price will remain in force for that time. After the offer period ends, your use of the Service will be charged at the new price. If your Service is on a period basis (for example, monthly) with no specific length, we'll notify you of any price change at least 30 days in advance. If you don't agree to these changes, you must cancel per the Cancellation Policy provided in the “Cancellation Policy and Termination” section above, no later than fourteen (14) days prior to the conclusion of your current payment term. If you cancel, your Service ends at the end of your current Service period. If you fail to cancel as required, we will automatically renew the Service for the same term and will charge your payment information on file with us commencing on the first day of the renewal term.
3. The Data Driven Practice shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
ACCEPTABLE USE
1. You must not use the Service to harm others or the Service. For example, you must not use the Service to harm, threaten, or harass another person, organization, or The Data Driven Practice and/or to build a similar service or website. You must not: damage, disable, overburden, or impair the Service (or any network connected to the Service); resell or redistribute the Service or any part of it; use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities; or use any automated process or Service (such as a bot, a spider, or periodic caching of information stored by The Data Driven Practice) to access or use the Service.
2. In addition, you promise that you will not and will not encourage or assist any third party to:
2a. modify, alter, tamper with, repair or otherwise create derivative works of the Service;
2b. reverse engineer, disassemble or decompile the Service used to provide or access the Service, including the Service, or attempt to discover or recreate the source code used to provide or access the Service, except and only to the extent that the applicable law expressly permits doing so;
2c. use the Service in any manner or for any purpose other than as expressly permitted by these Terms, the Privacy Policy, any User Guides or any other policy, instruction or terms applicable to the Service that are available on the Service (collectively the “Policies”);
2d. sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Service to any third party;
2e. remove, obscure or alter any proprietary rights notice pertaining to the Service;
2f. access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
2g. use the Service to:
a. engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data;
b. send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise;
c. advertise or promote a commercial product or service that is not available through The Data Driven Practice;
d. store or transmit inappropriate Content or Content, such as Content or Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others;
e. store or transmit anything that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or
f. abuse, harass, stalk or otherwise violate the legal rights of a third party;
g. interfere with or disrupt servers or networks used by The Data Driven Practice to provide the Service or used by other users' to access the Service, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user's full use and enjoyment of any Service or the Service;
h. access or attempt to access The Data Driven Practice's other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;
i. cause, in The Data Driven Practice's sole discretion, inordinate burden on the Service or The Data Driven Practice's system resources or capacity;
j. share passwords or other access information or devices or otherwise authorize any third party to access or use the Service; or
k. copy any of the ideas, features, graphics, or core functions of the Service.
8. The Data Driven Practice reserves the right, in its sole discretion, to deactivate, change and/or require you to change your The Data Driven Practice user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Service for any reason or for no reason. The Data Driven Practice may exercise such right at any time, with or without prior notice. We will make all judgments concerning the applicability of these guidelines in our sole and exclusive discretion. We reserve the right, in its sole discretion, to determine whether and what action to take in response to each such notification, and any action or inaction in a particular instance will not dictate or limit our response to a future complaint. We will not assume or have any liability for any action or inaction with respect to any Content.
HIPAA COMPLIANCE
1. You will ensure that your use of the Service complies with applicable law, including but not limited to laws relating to maintenance of privacy, security, and confidentiality of patient and other health information.
2. You agree to implement and maintain appropriate administrative, physical and technical safeguards to protect information within the Service. Such safeguards must comply with federal, state, and local requirements, including the Privacy Rule and the Security Rule.
3. You will maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or members of your workforce to transmit, store and process electronic health information through the use of the Service.
4. By using the Service, you consent to the terms of the Business Associate Agreement (“BAA”) set forth below and you agree to protect any information received through such communication services in accordance with the terms of such Business Associate Agreement.
5. The Data Driven Practice applies the standards of the Privacy Rule in permitting access to the Service.
6. You acknowledge that other federal and state laws impose additional restrictions on the use and disclosure of certain types of health information, or health information pertaining to certain classes of individuals.
7. You agree that you are solely responsible for ensuring that personal health information is subject to the restrictions of the Privacy Rule and applicable law. In particular, you will:
a. not make available to other users through the Service any information in violation of any restriction on use or disclosure (whether arising from your agreement with such users or under law);
b. obtain all necessary consents, authorizations or releases from individuals required for making their personal health information available to The Data Driven Practice; and
c. include such statements (if any) in your notice of privacy practices as may be required.
8. The Data Driven Practice is committed to maintaining the confidentiality of information entrusted to us, especially individually identifiable personal and health information. The Data Driven Practice follows its HIPAA policies and procedures. You are responsible for determining if the Service meets your compliance standards.
USE OF PROTECTED HEALTH INFORMATION
1. The Service may include use of your patients’ Protected Health Information that you or your personnel input or upload onto the Service or that The Data Driven Practice receives on your behalf from your authorized service providers or our third party partners (“Your Health Information”). The Data Driven Practice may incorporate information it receives from your authorized service providers; (including any third party product or services) or our third party partners into the Service provided to you. Such information may include, without limitation, clinical information such as lab results, imaging results, eligibility information, and prescription history; and shall, upon incorporation into the Service, be treated as “Your Health Information” for all purposes hereunder. You hereby authorize The Data Driven Practice to request and receive such information on your behalf from such authorized service providers or The Data Driven Practice’s third party partners. You retain all rights with regard to Your Health Information, and The Data Driven Practice will only use such information as expressly permitted in this Agreement and our Business Associate Agreement. You authorize The Data Driven Practice, as your business associate, to use and disclose Your Health Information as follows:
a. The Data Driven Practice will permit access to Your Health Information by business associates to whom you have consented to provide access to the Service and who have otherwise agreed to integrate with our systems pursuant to appropriate assurances. You acknowledge that once The Data Driven Practice has granted access rights to another provider or covered entity (or their respective business associates), The Data Driven Practice has no control over the uses and disclosures that the business associate makes of Your Health Information, and the recipient may be subject to its own legal or regulatory obligations (including HIPAA) to retain such information and make such information available to patients, governmental authorities and others as required by applicable law or regulation.
b. The Data Driven Practice may “De-Identify” (means health information that has been de-identified in accordance with the provisions of the Privacy Rule) Your Health Information and use and disclose De-Identified Information. See the “De-Identified Information” section below.
c. The Data Driven Practice may create limited data sets from Your Health Information, and disclose them for any purpose for which you may disclose a limited data set; and you hereby authorize The Data Driven Practice to enter into data use agreements on your behalf for the use of limited data sets, in accordance with applicable law and regulation.
d. The Data Driven Practice may use Your Health Information in order to prepare analyses and reports, such as activity or quality-metrics reports, or any other reports the Service makes available, in order to render these reports to you. Preparation of such analyses and reports may include the use of data aggregation services relating to your treatment and health care operations, which The Data Driven Practice may perform using Your Health Information. Such reporting will be done in a manner that does not make any disclosure of Your Health Information that you would not be permitted to make.
e. The Data Driven Practice may use Your Health Information for the proper management and administration of the Service and our business, and also as required to carry out its legal responsibilities. The Data Driven Practice may also disclose Your Health Information for such purposes if the disclosure is required by law, or The Data Driven Practice obtains reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only (i) as required by law (as such term is defined in 45 CFR §164.103), or (ii) for the purpose for which it was disclosed to the recipient, and the recipient notifies The Data Driven Practice of any instances of which it is aware in which the confidentiality of the information has been breached. Without limiting the foregoing, The Data Driven Practice may permit access to the system by our contracted system developers under appropriate confidentiality agreements.
2. You are solely responsible for affording individuals their rights with respect to relevant portions of Your Health Information, such as the rights of access and amendment. You will not undertake to afford an individual any rights with respect to any information in the Service other than Your Health Information.
DE-IDENTIFIED INFORMATION
The process of de-identification in accordance with the provisions of the Privacy Rule, by which identifiers are removed from Your Health Information, mitigates privacy risks to individuals and thereby supports the secondary use of data for case studies, assessment, research, and other endeavors. The Privacy Rule permits a covered entity or its business associate to create information that is not individually identifiable by following the de-identification standard and implementation specifications in §164.514(a)-(b).
In consideration of The Data Driven Practice’s provision of the Service, you hereby transfer and assign to The Data Driven Practice all right, title and interest in and to all De-Identified Information that The Data Driven Practice makes from Your Health Information as outlined herein. You agree that The Data Driven Practice may use, disclose, market, license and sell such De-Identified Information for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, use, license, or other commercialization thereof. You acknowledge that the rights conferred by this Section are a major consideration for the provision of the Service, and absent these provisions, The Data Driven Practice would not enter into this Agreement and agree to provide the Service.
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (this “BAA”) is entered into by and between The Data Driven Practice and you (“Healthcare Provider”) who entered into the Agreement for the Service. This BAA applies with respect to any and all Protected Health Information (“PHI”) that may be collected, accessed, used, processed or disclosed pursuant to The Data Driven Practice’s performance and Healthcare Provider's receipt of services under the Agreement. Pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as updated and amended by Subtitle D of the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), The Data Driven Practice may from time to time act as a business associate in the performance of services for Healthcare Provider under the Agreement. In such event, the Healthcare Provider is a covered entity. Pursuant to this BAA, The Data Driven Practice and Healthcare Provider agree to access, use, process and disclose any such PHI in compliance with the requirements of HIPAA and the HITECH Act, and their implementing rules and regulations. By accepting the terms of the Agreement or by using any Service made available under the terms of the Agreement, Healthcare Provider accepts the term and conditions of this BAA. Please note that The Data Driven Practice reserves the right, at our sole discretion, to change this BAA from time to time. Healthcare Provider's continued use of the Service provided under the Agreement after any such change takes effect will be deemed to constitute Healthcare Provider's acceptance of and agreement to the revisions to this Agreement.
1. Uses and Disclosures of PHI
2. Definitions. Capitalized terms not defined in this BAA will be defined as provided in HIPAA, the HITECH ACT and their implementing rules.
a. Healthcare Provider may from time to time disclose PHI in conjunction with Healthcare Provider's receipt of services under the Agreement. For purposes of this BAA, “Protected Health Information” (PHI) is limited to PHI, as defined in HIPAA, HITECH and their implementing rules, that is accessed, used, processed or disclosed pursuant to the Agreement.
b. Neither party will access, use, process or disclose such PHI for any purpose other than as permitted under this BAA and applicable law. Each party may access, use, process and disclose the PHI it receives for the proper management and administration of such party, to perform its obligations under and receive the benefits of the service delivered under the Agreement and to otherwise carry out its legal responsibilities; provided, however, that in all cases such use is permitted under applicable law. Either party may disclose PHI if the disclosure is required by law. Either party may also disclose PHI for the proper management and administration of the business of such party, provided it obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as required by law and for the purpose for which it was disclosed.
c. Each party will maintain appropriate safeguards including, but not limited to, administrative, organizational, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the PHI.
d. If either party becomes aware of any unauthorized access to or use, processing or disclosure of unsecured PHI, it will so notify the other party. Such notice will contain: (i) the date of discovery of the unauthorized access, use, processing or disclosure; (ii) a listing of the identification of individuals and/or classes of individuals who are subject to the unauthorized access, use, processing or disclosure; and (iii) a general description of the nature of the unauthorized access, use, processing or disclosure. The party responsible for such unauthorized access, use, processing or disclosure will perform an appropriate risk assessment to determine whether the PHI has been compromised. In performing the risk assessment, such party will consider a combination of factors such as: (i) the nature and extent of the PHI affected, (ii) the unauthorized person who impermissibly used the PHI or to whom the PHI was impermissibly disclosed; (iii) whether PHI was acquired or viewed and (iv) the extent to which the risk to the PHI has been mitigated. The results of such risk assessment will be provided to the other party. The Data Driven Practice is not responsible for monitoring Healthcare Provider’s own access to or use, processing or disclosure of PHI.
e. In the event of an unauthorized access to or use, processing or disclosure of unsecured PHI, the party responsible for such unauthorized access to or use, processing or disclosure of unsecured PHI will use reasonable efforts to mitigate, to the extent practicable, any harmful effect arising from such unauthorized access to or use, processing or disclosure of unsecured PHI.
f. The parties will cooperate with respect to any required notifications that must be made to the individuals or the media with respect to any unauthorized access to or use, processing or disclosure of unsecured PHI.
g. With respect to any subcontractor or agent to whom either party provides PHI, the disclosing party will first contractually obligate such subcontractor or agent to agree to protect such PHI pursuant to terms and conditions at least as protective as the terms of this Business Associate Agreement.
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h. The Data Driven Practice may De-Identify any and all PHI that is in its possession or control provided that The Data Driven Practice implements de-identification criteria in accord with applicable law. De-Identified Information does not constitute PHI and is not subject to the terms of this BAA.
3. Compliance with Law.
a. Each party is responsible for its own compliance with any and all existing or subsequent laws, whether by statute, regulation, common law, or otherwise, related to its access to or use, processing or disclosure of PHI. Healthcare Provider agrees that it will have and maintain appropriate consents from data subjects, as may be necessary, for The Data Driven Practice to access, use, process and disclose PHI in accordance with its delivery of services under the Agreement and as otherwise permitted under this BAA.
b. The parties will provide each other only the minimum amount of PHI necessary for us to perform the Service described in the Agreement.
c. Upon request by the Department of Health and Human Services (“HHS”), each party will make available to HHS the internal practices, books, and records of such party relating to the use and disclosure of PHI for purposes of ensuring compliance with the provisions of HIPAA and the HITECH Act.
d. In the event that The Data Driven Practice receives an inquiry from an individual for access to or the right to amend PHI, it will advise Healthcare Provider of that communication and the request. The parties will cooperate in making PHI available to the individual and in making the requested amendment of PHI. The Healthcare Provider will retain and make available on request information required to provide an accounting of disclosures in accordance with the provisions of HIPAA and the HITECH Act.
4. Termination and Destruction of PHI.
a. In the event that either party reasonably determines that the other has accessed, used, processed or disclosed unsecured PHI in a manner inconsistent with a material term of this Agreement, it will provide written notice of such breach to the other party and specify in reasonable detail any such breach. Upon receipt of such written notice, the receiving party will have 30 days to achieve compliance with this BAA or to establish a reasonable schedule for compliance with this BAA. In the event that a party fails or refuses to comply with this obligation, the other party may terminate this BAA upon written notice. If either party reasonably determines that the other party has accessed, used, processed or disclosed PHI in a manner inconsistent with this BAA following written notice of a prior breach, the non-breaching party may immediately terminate the Agreement.
b. Within thirty (30) days of termination of this BAA, The Data Driven Practice will return to Healthcare Provider, or destroy, the PHI made available to The Data Driven Practice by the Healthcare Provider that is in its control and take reasonable steps to ensure that The Data Driven Practice has no means of identifying or re-identifying individuals who are the subject of such PHI. The Data Driven Practice will also obligate any subcontractor to return to The Data Driven Practice, or destroy, any such PHI in the subcontractor's control.
c. In the event that The Data Driven Practice is unable to return or destroy the PHI in its control, The Data Driven Practice will continue to protect such PHI from further disclosure.
5. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL The Data Driven Practice OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, PROPRIETORS, PARTNERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SERVANTS, ATTORNEYS, PREDECESSORS, SUCCESSORS OR ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY, OR LOSS OF USE) ARISING OUT OF ITS ACCESS TO OR USE, PROCESSING OR DISCLOSURE OF PHI, EVEN IF IT OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages; thus, this limitation may not be applicable.
6. Indemnification. Healthcare Provider will defend, indemnify, and hold harmless The Data Driven Practice and its affiliates, and its and their respective directors, officers, shareholders, proprietors, partners, employees, agents, representatives, servants, attorneys, predecessors, successors and assigns, from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys' fees and litigation expenses), relating to or arising from Healthcare Provider's (i) unauthorized access to or use, processing or disclosure of PHI, (ii) breach of this Agreement or (iii) violation of applicable law.
7. Notices. All notices and other communications required or permitted to be given by The Data Driven Practice to you under this Agreement will be deemed to be properly given on the date when sent by email to the email address for you last recorded by The Data Driven Practice or sent by postal mail or private courier to the postal address for you last recorded by The Data Driven Practice. All notices and other communications required or permitted to be given by you to us under this BAA will be deemed to be properly given on the date when sent by postal mail or private courier to 6543 N Landmark Drive Park City, Utah 84098, Attention: Legal Department.
8. Miscellaneous. This BAA contains the final and entire agreement regarding the subject matter hereof and supersedes all previous and contemporaneous oral or written agreements. The failure by either party to enforce any right or provision of this BAA will not constitute a waiver of that provision or of any other provision of this BAA. If any provision of this BAA is determined to be invalid or unenforceable by a court, such provision will be deemed severable and the remainder of this Agreement will remain in full force and effect. This BAA may not be assigned by you. Both parties agree that this BAA, as well as any and all claims arising from this BAA will be governed by and construed in accordance with federal law and the laws of the State of Utah, without reference to its conflicts of law rules, and the parties irrevocably submit to the exclusive jurisdiction and venue of the courts of Utah County, Utah. The parties are independent contractors and this BAA does not create an agency, partnership or joint venture.
NO WARRANTY
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPLICITLY SET FORTH ABOVE, The Data Driven Practice IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICE, CONTENT OR TECHNOLOGY, AND The Data Driven Practice AND ITS LICENSORS, DISTRIBUTORS, PARTNERS AND AFFILIATES (COLLECTIVELY, THE “AFFILIATES”) DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICE, CONTENT AND TECHNOLOGY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, The Data Driven Practice, ITS PARENT, ANY THIRD PARTIES ACTING ON ITS BEHALF, AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY YOU DUE TO CAUSES BEYOND The Data Driven Practice'S OR ITS PARENT, ANY THIRD PARTIES ACTING ON ITS BEHALF, OR ITS AFFILIATES’ CONTROL.
The Data Driven Practice EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY HAVE WITH YOUR PATIENTS, CONSUMERS OR SITE USERS, AND YOU WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS. YOU WILL BE SOLELY RESPONSIBLE FOR THE PROFESSIONAL AND TECHNICAL SERVICES YOU PROVIDE. The Data Driven Practice HAS NO LIABILITY FOR THE CONSEQUENCES TO YOU OR YOUR PATIENTS, CONSUMERS OR SITE USERS OF YOUR USE OF THE SERVICE.
The Data Driven Practice OFFERS NO ASSURANCE THAT YOUR USE OF THE SERVICE UNDER THE TERMS OF THIS AGREEMENT WILL NOT VIOLATE ANY LAW OR REGULATION APPLICABLE TO YOU. The Data Driven Practice AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICE OR THE CONTENT ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SERVICE OR THE CONTENT OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION E XPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.
IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICE IS NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT, TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICE DOES NOT PROVIDE TAX OR LEGAL ADVICE. YOU ARE RESPONSIBLE FOR OBTAINING SUCH ADVICE.
In the event that the jurisdiction where the Service is received by you does not allow the exclusion of implied warranties or the limitation of liability for damages, The Data Driven Practice’s liability will be limited to the greatest extent permitted by the applicable law in that jurisdiction, keeping in mind the restrictions outlined herein.
INDEMNIFICATION
To the extent permitted by law, you will defend and hold harmless The Data Driven Practice, including its parents, subsidiaries, affiliates, officers, directors, agents, employees, contractors, licensors, and other partners, from and against any claim, demand, judgment, liability, costs, expense (including attorney fees and costs), cost, loss, damage, or other liability arising from any third party demand or claim arising out of your breach or alleged breach of this Agreement, any of the documents referenced herein, or your violation of any applicable law, rule, or regulation.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL The Data Driven Practice, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT); (ii) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (iii) ANY LOSS OF DATA OR OTHER CONTENT RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS RESPECTING THE SERVICE OR The Data Driven Practice’S OPERATIONS. THIS LIMITATION APPLIES TO DAMAGES HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF The Data Driven Practice HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF The Data Driven Practice AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF AN AMOUNT EQUAL THREE MONTHS OF YOUR SERVICE FEE FOR THE SERVICE OR FIVE DOLLARS ($5.00). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.
LIMITATION OF LIABILITY
You are contracting with The Data Driven Practice with an address at 6543 N Landmark Drive Park City Ut, 84098 USA. The laws of the State of Utah, U.S.A. govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will, only to the extent required by applicable law, be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country in which you reside. You and we irrevocably consent to the exclusive jurisdiction and venue of the state courts located in Davis County, Utah, USA, for all disputes arising out of or relating to the Service, the Terms and this Agreement.
NOTICES
We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Service or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Service. You may provide legal notice to us via email to [email protected], with a duplicate copy sent via registered mail, return receipt requested, to the following address: The Data Driven Practice, Attn: Legal Team, 6543 N Landmark Drive Park City UT, 84098. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
GENERAL CONDITIONS
1. Your use of the Service is at your sole risk. The Service is provided on an “as is” and “as available” basis.
2. Technical support is only provided to paying account holders and is only available via email or the in-app support button.
3. You understand that The Data Driven Practice uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service. The Data Driven Practice is not responsible or liable for suspension or failure of the use of the Service do to the negligence or other conduct of these third party vendors and hosting partners.
4. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, The Data Driven Practice
5. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by The Data Driven Practice.
6. We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
7. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any DDP customer, employee, member, or officer will result in immediate account termination.
8. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
9. You must not upload, post, host, or transmit unsolicited email, SMS, or “spam” messages.
10. You must not transmit any worms or viruses or any code of a destructive nature.
11. If your bandwidth usage exceeds 300 MB/month, or significantly exceeds the average bandwidth usage (as determined solely by The Data Driven Practice) of other DDP customers, we reserve the right to immediately disable your account or throttle your Service until you can reduce your bandwidth consumption.
12. The Data Driven Practice does not warrant that (i) the Service will meet your specific requirements, (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, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, and (v) any errors in the Service will be corrected.
13. You expressly understand and agree that The Data Driven Practice 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, data or other intangible losses (even if The Data Driven Practice has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Service; (v) or any other matter relating to the Service.
14. The failure of The Data Driven Practice to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. The Terms constitutes the entire agreement between you and The Data Driven Practice and govern your use of the Service, superseding any prior agreements between you and The Data Driven Practice (including, but not limited to, any prior versions of the Terms).
GENERAL CONDITIONS
1. These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Terms will remain in effect. This is the entire contract between you and us regarding the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service. We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service.
2. The Data Driven Practice and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors. Claims must be filed within one (1) year. You must bring any claim related to these Terms or the Service within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn't filed in time, the claim is permanently barred.
3. The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
4. If you are a U.S. government entity, you acknowledge that any documentation that is provided are Commercial Items as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
5. The Data Driven Practice reserves the right to modify the terms of this Agreement from time to time, at its sole discretion; and your continued use of the Service constitutes your acceptance of such modified terms.
6. With respect to any acquisition or use of the Service by or for any unit or agency of the United States Government (the “Government”), the Service shall be classified as “commercial computer software” as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the “FAR”) and supplements thereto, including the Department of Defense (“DoD”) FAR Supplement (the “DFARS”). The Service was developed entirely at private expense, and no part of the Service was first produced in the performance of a Government contract. If the Service is supplied for use by the DoD, the Service is delivered s ubject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252-227-7013 (c)(l)(ii)(OCT 1988), as applicable. If the Service is supplied for use by a Federal agency other than the DoD, the Service is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable. The manufacturer/Service provider is The Data Driven Practice.
7. You acknowledge that the Service is subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export this Service, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions; (2) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (3) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that this Service may include technical data subject to export and re-export restrictions i mposed by U.S. law.
8. As applicable, you agree to fully comply with the provisions of the United States Foreign Corrupt Practices Act (“FCPA”) and/or the Organization for Economic Cooperation and Development prohibiting foreign bribery and improper payments. Without limiting the generality of the foregoing, you represent and warrant that you have not and shall not at any time during the Term of the Agreement pay, give, or offer or promise to pay or give, any money or any other thing of value, directly or indirectly, to or for the benefit of: (i) any government official, political party, or candidate for political office; or (ii) any other person, firm, corporation or other entity, with knowledge that some or all of that money or other thing of value will be paid, given, offered or promised to a government official, political party or candidate for political office, for the purpose of obtaining or retaining any business, or to obtain any other unfair advantage, in connection with The Data Driven Practice’s business. Further, you agree to maintain complete and accurate books and records for compliance with the FCPA in the event The Data Driven Practice has reason to suspect or is placed on notice that you are in violation of this subsection, or as required by law.
Questions about these Terms should be sent to [email protected].
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