Terms of Service
Last Modified: August 17, 2018
TPC Acquisition, LLC dba Therapy Partner ("Therapy Partner") requires You, including any entity on whose behalf You enter these Terms of Service (each, "You" or "Your") to agree and adhere to the following terms and conditions of Service ("Terms of Service") in connection with Your purchase and use of Therapy Partner’s services and user accounts (such services and user accounts referred to collectively as the “Service”), and with your access to any Therapy Partner website or hosted application or portal (the “Sites”). Certain sections of these Terms of Service apply specifically to certain features offered by Therapy Partner. Those sections do not apply to You unless You sign up for the specific Service to which they relate. By accessing or otherwise using the Service, You represent and warrant that You have the requisite capacity and authority to enter into these Terms of Service and indicate Your agreement, acknowledgment and acceptance of the Terms of Service and You agree and covenant to comply with all applicable laws, rules and regulations governing Your use of the Service.
- 1. DESCRIPTION OF SERVICE
- 2. GENERAL REPRESENTATIONS AND WARRANTIES
- 3. MESSAGING SERVICE AND PAYMENT SERVICE SPECIFIC TERMS
- 4. RESPONSIBILITY FOR DISCLOSURE OF CLIENT TERMS OF SERVICE
- 5. LAWS AND REGULATIONS
- 6. CHANGES TO THESE TERMS OF SERVICE
- 7. ENROLLMENT; USER ACCOUNTS
- 8. LICENSE AND USE OF THE SITES
- 9. PRICING & PAYMENTS
- 10. USER SUPPORT
- 11. SERVICE LEVEL AGREEMENT
- 12. TERM AND CANCELLATION
- 13. ASSIGNMENT
- 14. PROPERTY RIGHTS
- 15. NO WARRANTIES
- 16. LIMITATION OF LIABILITY
- 17. INDEMNIFICATION
- 18. VIOLATIONS OF SERVICE TERMS - TERMINATION
- 19. GOVERNING LAW
- 20. ARBITRATION
- 21. PRIVACY; ACCEPTABLE USE
- 22. DATA SECURITY, DATA USE AND DATA DELETION
- 23. INTERNATIONAL TRANSACTIONS AND CLIENT DATA
- 24. EXPORT COMPLIANCE & GOVERNMENT USE
- 25. FORCE MAJEURE
- 26. ENTIRE AGREEMENT/SEVERABILITY/WAIVER
- 27. NOTICES
- 28. GENERAL
- 29. CONTACTING US
1. DESCRIPTION OF SERVICE
From time to time, Therapy Partner may develop and incorporate other features into the Service, either in connection with existing features or on a stand-alone basis. Your use of such additional features, if any, is governed by these Terms of Service.
As part of the Service, Therapy Partner may make available to You additional features that allow You to integrate or use the Service with products and services provided by third-parties ("Add-On Features"). Add-On Features may be provided for a fee or at no charge. You agree that You will pay all applicable fees for the Add-On Features for which you sign up. Therapy Partner is not responsible for and does not endorse any third party products or services that You use in connection with the Service or an Add-On Feature. You understand that Add-On Features may impact Your use of the third products or services with which they integrate, and Therapy Partner is not responsible for, and shall have no liability in connection with such impact. All Add-On Features are provided "as-is" and are subject to those warranty disclaimers set forth in Section 15 of these Terms of Service and those limitations of liability set forth in Section 16 of these Terms of Service.
2. GENERAL REPRESENTATIONS AND WARRANTIES
You represent and warrant to Therapy Partner, and You covenant, that: (a) You or the person who has applied for the Service on Your behalf is at least eighteen (18) years old; (b) You or the person who has applied for the Service on Your behalf will access Therapy Partner’s websites (collectively the "Sites") from a computer (and/or mobile device) with a U.S. IP address (and/or U.S. network connection) and is a U.S. citizen; and (c) You or the person who has applied for the Service on Your behalf is Your owner and has the full power and authority to enter into these Terms of Service on Your behalf.
You understand and acknowledge that the Internet is an inherently insecure medium and the reliability of hosting services, Internet intermediaries, Your Internet service provider and other service providers cannot be assured. You further understand that even though email may be encrypted, Therapy Partner cannot guarantee that it will not be intercepted or affected by the actions or omissions of others, such as third party networks or persons with access to the internet. When You use the Service, You represent, warrant and covenant that You accept these risks and the responsibility for choosing to use a technology that does not provide perfect security or reliability.
The Service provides You with access to third-party products and services advertised from within the User console. You understand that all third-parties offering goods/services, sponsoring events, or otherwise advertising via the Service, are completely separate from Therapy Partner and that Therapy Partner is not subject to, or responsible for, any third-party terms related to products/services/promotions advertised via the Service, including but not limited to Your correspondence or business dealings with third parties, payment and delivery of third-party goods or services, and any other terms, conditions, warranties, or representations made by third-party advertisers. Your use of any third-party services via the Service signifies Your acceptance of any third-party terms. You acknowledge and agree that Therapy Partner shall not be responsible or liable for any loss or damage of any sort incurred as the result of any purchases or relationships with third parties advertising or offers provided via the Service.
3. MESSAGING SERVICE AND PAYMENT SERVICE SPECIFIC TERMS
This Section 3 applies only if You have signed up for the Messaging Service and/or Payment Service or are in the process of signing up for the same. If You subsequently sign up for the Messaging Service and/or Payment Service, this Section 3 shall automatically apply to You and Your use of the Service.
3.1 Accuracy and Timeliness of Messages. Messages to be sent to Your Clients created using the Service will be prepared using information that is provided by You. You are responsible for the customization of Messages created using the Service and the accuracy and completeness of all information on which Messages to Your clients are based, including, without limitation, the identity of, and contact information for, Your clients who are being Messaged, the transactions for which You are billing them, and the cost thereof, including applicable discounts. Therapy Partner will not entertain or handle disputes about the information provided by You on which Messages are based. You will be responsible for promptly handling any and all disputes with Your clients. It is solely Your obligation to inform Therapy Partner as to any errors contained in any Messages created using the Service. It is also solely Your obligation for determining the schedule on which Messages will be created and distributed. You must ensure that the schedule of messaging that You select reflects the terms to which You have agreed with Your clients.
3.2 Payment Service Enrollment. Enrollment to use the Payment Service is not automatic. You must apply for a payment processing account with a third party software provider integrated with Therapy Partner, and you must also be accepted for payment processing by a third party merchant account provider. Therapy Partner plays no part in the payment processing approval decision; we simply provide an interface by which you can utilize third party systems via the Service. As part of the third party enrollment process You will receive copies of the terms and conditions applicable to the services provided by such parties, which shall be binding on You. Additional fees apply and will be billed by the third parties based on their fee schedules and terms.
3.3 Messaging Service and Payment Service Representations and Warranties. You represent and warrant to Therapy Partner, and You covenant, that: (a) You will provide complete and accurate information on which Messages issued in connection with the Messaging Service and Payment Service will be based and You will timely resolve any disputes in connection therewith; (b) the schedule that You select for messaging reflects the terms to which You have agreed with Your clients; and (c) each of Your clients with respect to whom You utilize the Messaging Service or Payment Service have consented to receiving electronically all Messages, materials, disclosures, terms and other content delivered to them through such Services, are willing and capable of receiving, reviewing, printing and saving all such Messages, materials, disclosures, terms and other content, have consented to Your disclosure in connection with the Messaging Service and Payment Service of the information required to create and distribute Messages to Your clients, have consented to making payments through the Payment Service (if You have subscribed to the Payment Service), and have agreed to the Client Terms of Service (as described below) prior to viewing any Messaging via the Messaging Service or making a payment using the Payment Service (if You have subscribed to the Messaging Service/Payment Service).
3.4 Payment Service Fees. Set-up fees (if applicable) and monthly subscription fees may be charged by the third party payment processing software provider integrated with the Payment Service. Transactional and merchant account fees may be charged in connection with transactions made using the payment acceptance options You selected when You applied for the third party payment processing accounts, as such were provided in the enrollment materials, or in the payment acceptance agreement to which You are a party (if You have subscribed to the Payment Service). Set-up fees, transaction fees and the monthly subscription fees are wholly governed by Your contractual agreement and Terms with the third party provider of the payment processing software applications as well as any applicable third-party payment acceptance agreements.
3.5 Other Agreements. If You subscribe to the Payment Service, You will be required to accept and abide by terms presented to You by the applicable third party payment processors. These may include, without limitation, software licenses, card acceptance agreements, or other electronic payment method agreements (collectively, “Payment Processor Terms”). The Payment Processor Terms are a legal agreement between You and the applicable payment processor only, and Therapy Partner is not subject to, or responsible for, the Payment Processor Terms.
4. RESPONSIBILITY FOR DISCLOSURE OF CLIENT TERMS OF SERVICE
5. LAWS AND REGULATIONS
Your access to and use of the Service and the Sites are subject to all applicable international, federal, state, and local laws and regulations, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and their implementing regulations set forth at 45 C.F.R. Parts 160 and Part 164 (collectively the “HIPAA Rules”). You may not use the Service or the Sites, or any information, data or content available at or through the Service or the Site (collectively, "Content"), in violation of, or to violate, any law, rule or regulation. Therapy Partner does not make, and hereby disclaims, any representation that the Content is appropriate or available for use in any particular location, and access to Content from territories where the Content may be illegal is prohibited. Those who choose to access or use the Site and the Service do so at their own initiative and risk and are responsible for compliance with all applicable laws.
6. CHANGES TO THESE TERMS OF SERVICE
Therapy Partner reserves the right to revise, modify and supplement the content of the Sites and these Terms of Service (and all other documents related hereto or described herein) at any time in Therapy Partner’s sole discretion. The latest Terms of Service or other applicable document will be posted to the Sites and the date indicated as "Last Modified" at the beginning of these Terms of Service or with respect to any other modified document will be updated to reflect the date as of which the last of any such revisions, modifications and supplementation occurred. Your continued use of the Sites and the Service from the date the modified version is posted to the Sites shall be deemed to constitute Your affirmative acknowledgment of, and agreement to abide and be bound by, the modified terms, conditions and obligations therein. Therefore, You should regularly check the Sites for updates and/or changes. If You object to any of these revisions, modifications or supplementations or become dissatisfied with the Service in any way, Your sole recourse is to immediately discontinue Your use of the Service and the Sites.
Therapy Partner reserves the right to revise, modify and supplement the Client Terms of Service at any time in Therapy Partner’s sole discretion. The latest Client Terms of Service will be posted to the Sites and the date indicated as "Last Modified" at the beginning of the Client Terms of Service will be updated to reflect the date as of which the last of any such revisions, modifications and supplementation occurred. It is Your responsibility to ensure that Your clients are aware of the current version of the Client Terms of Service.
7. ENROLLMENT; USER ACCOUNTS
Therapy Partner reserves the right to reject any enrollment in the Service, or any portion thereof, for any reason. Your enrollment information must be accurate and complete, and You shall update enrollment information as necessary to keep it accurate and complete. You shall not misrepresent Your ownership, Your identity, the identities of Your authorized users of the Service or those whom You have authorized to act on Your behalf, or any other enrollment information or information provided by You subsequent to the enrollment. Failure to provide accurate and complete information may result in the termination of Your ability to use the Service and result in errors.
Therapy Partner is not responsible or liable for any processing delays or damages which may result from any delays in the Service or Your enrollment therein. Enrollment is activated upon the earlier to occur of (a) the date a Service Agreement is signed (b) the time at which You first log into the password protected portion of the Sites. The username and password provided in the enrollment confirmation email will be that which is assigned to the Primary Local Administrator for Your account (the "Primary Local Administrator").
The Primary Local Administrator must assign each and every employee or representative that will access the Service a separate user account that is granted either Administrative Level access (full read/write/edit access to all system features and functions) or limited Associate Level access.
You the Primary Local Administrator, and all other authorized users shall have a unique username and password. You the Primary Local Administrator and any other authorized user of Your account, shall not use a username or password that Therapy Partner, in its sole discretion, deems offensive or inappropriate. You are solely responsible for maintaining the confidentiality and security of usernames and passwords for Your account, and assume all liability for sharing or disclosing such usernames and passwords. You agree to immediately contact Therapy Partner at [email protected] or 877-232-9847 if You become aware that the security of the usernames and/or passwords for Your account may have been compromised or if there has been unauthorized access to Your account or Your data. You are solely responsible for all activity occurring under the usernames and passwords for Your account. Access to and use of password-protected and secure areas of the Sites and the Service is restricted to authorized users only.
8. LICENSE AND USE OF THE SITES
You are hereby granted a limited license during the portion of the Term (as described below) to utilize, including incidental copies arising from the operation of Your browser, the Service and Content solely as expressly permitted by Therapy Partner. You may only use the Service, the Sites, and the Content as directed in the tutorials and User Guides on the Site. You may not resell or sublicense the Service, the Content, or any other services provided by Therapy Partner to any other person or entity. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works from, decompiling, reverse engineering, disassembling, transferring, or using the Service or the Content, or any other materials available on or through the Sites for any purposes, except You may make print copies of the Content for Your own benefit and internal business use, but not for distribution to others. You agree that Your use of the Sites is voluntary, non-assignable and non-transferable.
You may not (a) use the Sites, the Content or the Service in any manner that could damage, disable, overburden, or impair the Sites, the Content or the Service, nor may You use the Sites, the Content or the Service in any manner that could interfere with any other person’s or entity’s use and enjoyment thereof, or (b) use any "robot," "spider" or other automatic device, or a program, algorithm, or methodology having similar processes or functionality, or any manual process to monitor or copy any of the Content or the Service, or any other materials found on the Sites.
You hereby covenant and agree that You will not charge Your clients for access to Your Messaging or the Client Portal supplied as part of the Service.
9. PRICING & PAYMENTS
All fees due in connection with the Service are non-refundable, whether such fees are set-up fees, transaction fees, monthly subscription fees, or other fees. Set-up fees, monthly subscription fees, utilization fees, service fees, transaction fees, custom programming fees, and all other fees owed by You to Therapy Partner, will be automatically debited from the bank account or other electronic payment method for which You have provided applicable account information during the account activation process, and You hereby authorize Therapy Partner to perform all such debits. Therapy Partner’s prices and fees may include sales, use, service, value-added or like taxes. Therapy Partner reserves the right to change pricing at any time, at its sole discretion, and without notice. You shall pay applicable taxes, unless You have provided to Therapy Partner an appropriate exemption certificate for the delivery destination acceptable to the applicable taxing authorities. All payments must be made in United States dollars.
All sums not paid when due (as a result of non-sufficient funds ("NSF") or for any other reason) shall be subject to the NSF fee of $30.00. Additionally, Therapy Partner reserves the right to accrue interest daily at the annual rate of the lesser of 18% or the highest rate permissible by law on the unpaid balance until paid in full. In the event You fail to pay any sum when it is due (as a result of NSF or for any other reason), Therapy Partner reserves the right to disable the username(s) and password(s) for Your account, to cancel Your account, and to pursue other collection or legal remedies.
Third party fees for services integrated with Therapy Partner, including but not limited to fees for utilizing third party payment processing software and associated payment processing merchant accounts, are billed directly by those third parties and are governed by the contracts, terms, and other legal agreements between You and the third parties. Therapy Partner is not subject to, or responsible for, any fees associated with Your use of a third party product or service.
In addition to these PRICING & PAYMENT TERMS, you may also be subject to the specific Pricing and Payment terms included in any Service Agreement you have executed with Therapy Partner.
In the event You wish to contest or dispute payment to, or collection by, Therapy Partner of any sums in connection with the Service, You must provide notice of such contest or dispute to Therapy Partner within sixty (60) days of the date on which any such sum becomes due.
10. USER SUPPORT
Therapy Partner provides standard base-level support as part of all paid subscription plans, with the understanding that the Primary Local Administrator is responsible for first-line support, training, system set-up, system management, and user management for all associated system users. You agree to provide Therapy partner the name and contact information for the Primary Local Administrator, and you further agree that all questions regarding functionality be first directed to the Primary Local Administrator.
If a support need cannot be satisfied by the Primary Local Administrator, the Primary Local Administrator, or any Administrator or Associate User, may contact Therapy Partner directly for second-line support. Provided that You are current in the payment of all fees due to Therapy Partner, standard second-line support will be provided during regular business hours at no additional charge. Any questions received via email outside of normal business hours will be responded to during normal business hours. Any questions sent via email must state the client ID number. You acknowledge that Therapy Partner will only provide support to registered Users, and only upon identity validation.
Second-line support means direct technical support for the Sites and the Service, including, but not limited to, (1) direct response to the Primary Local Administrator’s inquiries concerning performance, functionality or operation of the Service; (2) a direct response to reported problems for performance deficiencies with the Service; (3) a diagnosis of problems for performance deficiencies of the Service; and (4) a resolution of the problems for performance deficiencies of the Service.
All support requests that do not fall under standard second-line support (requests that entail detailed, specialized maintenance or support services including, but not limited to, assistance with configuring the Service to work with an unsupported or proprietary system), and all support requests above the standard allotted monthly support service time, will incur additional charges at Therapy Partner’s then current rates, or alternate rates individually quoted to You in a Service Agreement executed with Therapy Partner.
11. SERVICE LEVEL AGREEMENT
The Therapy Partner Service will be available online for production use at least ninety five percent (95%) of time that is scheduled to be available for such use (exclusive of preventative or scheduled maintenance) over a one (1) calendar month period. Actual online performance will be calculated on a calendar monthly basis by comparing the number of hours that the system was scheduled to be operational on an online basis with the number of hours, or portions of an hour, that the system was actually operational on an online basis. A performance outage will be recorded by Therapy Partner for any period in which a user cannot access one or more of the online service access points.
You acknowledge and agree that any service outage, regardless of duration, does not constitute a breach of these Terms of Service or any other Service Agreement between You and Therapy Partner. As Your exclusive remedy, in the event the Therapy Partner Service availability falls to below ninety five percent (95%) for a given calendar month, Therapy Partner will credit Your account as follows:
- Ninety percent (90%) to ninety four percent (94.9%) availability: fifty percent (50%) of the monthly fee will be credited.
- Eighty nine point nine percent (89.9%) availability or below: one hundred percent (100%) of the monthly fee will be credited.
All credits will be in the form of extending the Term of the Service Agreement for the period of time eligible for credit, and will not result in a refund of any fees due or previously paid. Notwithstanding the forgoing, Therapy Partner may, at its sole option, elect to refund and You agree to accept as Your sole remedy, the subscription fees paid for the calendar month in which the service outage occurred.
In order to qualify for a credit under this Section 11, You agree to notify Therapy Partner immediately upon Your suspicion that the Service is unavailable due to the fault of Therapy Partner. You further agree to provide reasonable information as requested by Therapy Partner for proper diagnosis or repair and for proper calculation of any applicable credit.
The service credit does not apply as a result of: (a)unavailability due to scheduled maintenance; (b) periods of unavailability during which Your account is not in good financial standing or You are in violation of these Terms of Service; (c) Your misuse of the Service and/or any violation of Therapy Partners Acceptable Use Policy; (d) unavailability of any third party service integrated with Therapy Partner (e) issues related to Your business operations, equipment or third party servicers; or (f) any attributable force majeure events or causes not within the reasonable control of Therapy Partner or its providers.
12. TERM AND CANCELLATION
These Terms of Service remain in effect until canceled by either party, as provided herein (the "Term"). Therapy Partner may cancel these Terms of Service or any aspect of the Service at any time upon ten (10) days advance notice for any reason. Therapy Partner may cancel these Terms of Service with You or any aspect of the Service provided to You immediately if You breach any obligations required of You in these Terms of Service, or any of the documents described herein.
In general, Therapy Partner Service Agreements will remain in effect for a full 12 month term and will automatically renew for successive 12 month non-cancellable terms, unless written notice of cancellation is provided to Therapy Partner by emailing [email protected] at least forty five (45) days prior to the automatic renewal date. Note that mid-term cancellations are not permitted, that no refunds will be provided for mid-term cancellations, and that You remain liable for full payment of all monies due Therapy Partner (for recurring monthly subscription fees, utilization fees, service fees, etc.) through the current Service Agreement end date. Any deviations from this general TERM AND CANCELLATION policy will be specifically noted in the Cancellation Terms included in any Service Agreement you have executed with Therapy Partner.
Notwithstanding the foregoing, cancellation of any third party services integrated with Therapy Partner, including but not limited to third party services associated with the Payment Service, may require Your completion of certain forms designated by the applicable third party providers.
Neither You nor Therapy Partner may assign or transfer, by operation of law or otherwise, any of its rights under these Terms or Service or any Service Agreement between You and Therapy Partner to any third party without the other party's prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign its rights and obligations under this these Terms or Service or any Service Agreement between You and Therapy Partner to a parent, affiliate, or subsidiary, or to a successor, whether by way of merger, sale of all or substantially all of its assets or otherwise. Any attempted assignment of this Agreement not in accordance with this Section 13 shall be null and void.
14. PROPERTY RIGHTS
You acknowledge that Therapy Partner, or third parties other than You, as applicable, own all rights, title and interest in and to the Service and the Sites, and portions thereof, including, but not limited to, all Intellectual Property Rights, and that the trademarks, logos and service marks ("Marks") displayed on the Sites or through the Service are the property of Therapy Partner or such third parties. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You acknowledge and agree that no title to any Intellectual Property Rights of Therapy Partner or such third parties is transferred to You, and that You do not obtain any rights, express or implied, in the Sites or the Content other than the rights expressly granted in these Terms of Service. The Content is protected by copyright and other Intellectual Property Rights. You are prohibited from using any Marks for any purpose including, without limitation, use as metatags on other pages or sites on the World Wide Web without the written permission of Therapy Partner or such third party that may own the Marks. You agree not to remove, obscure or alter the copyright notice, trademarks or other proprietary rights notices belonging to Therapy Partner or such third parties affixed to or contained within or accessed in conjunction with or through the Sites. Your use of the Service, the Content or the Sites is not an endorsement of You or Your practice by Therapy Partner, and You shall not utilize the trademarks, logos or service marks of Therapy Partner or such third parties to suggest any endorsement or affiliation to them. You remain owner of all rights, title and interest in and to the Intellectual Property Rights in Your trademarks, logos and service marks. If You upload any trademark, logo or service mark, or other material, You thereby grant Therapy Partner a limited license to use such in conjunction with Your use of the Service, such as in a Client Portal, on Your Messages or web page displays generated by the Service, and to identify You as a user of the Service.
You agree that Therapy Partner’s service providers and suppliers are third-party beneficiaries of the above provisions, with all rights to enforce such provisions as if they were each a party to these Terms of Service.
15. NO WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE AND ALL CONTENT MADE AVAILABLE ON OR THROUGH THE SITE OR VIA THE SERVICE ARE PROVIDED TO YOU BY THERAPY PARTNER "AS IS" ON AN "AS AVAILABLE BASIS" WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. THERAPY PARTNER MAKES NO WARRANTY THAT (A)THE SERVICE WILL MEET YOUR REQUIREMENTS, OR (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
THERAPY PARTNER DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (A) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY MESSAGING, APPPOINTMENT, STATEMENT, OR OTHER ITEM GENERATED THROUGH THE SERVICE (B) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY MESSAGING, OPINION, ADVICE, APPOINTMENT, OR STATEMENT MADE THROUGH THE SERVICE OR THE SITE BY ANY PARTY OTHER THAN THERAPY PARTNER, (C) ANY CONTENT PROVIDED ON ANY THIRD PARTY SITE(S) LINKED TO THE SITE, OR (D) THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM ANY THIRD PARTY SITE(S) LINKED TO THE SITE.
OTHER THAN AS REQUIRED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCE WILL THERAPY PARTNER, OR ANY OF ITS AFFILIATES, AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICE OR THE SITE, OR YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. IT IS YOUR SOLE RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE OR OBTAINED FROM A THIRD PARTY SITE LINKED TO THE SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE OR OTHER CONTENT.
THERAPY PARTNER DOES NOT REPRESENT OR WARRANT THAT THE SITE IS COMPATIBLE WITH YOUR EQUIPMENT OR THAT THE SITE IS FREE OF VIRUSES, WORMS, BOTS OR ANY OTHER HARMFUL, INVASIVE OR CORRUPTED FILES. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE UNIFORM COMMERCIAL CODE AND THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT SHALL NOT APPLY TO THESE TERMS OF SERVICE.
16. LIMITATION OF LIABILITY
THE INFORMATION, SOFTWARE, PRODUCTS, SERVICE, SITE, CONTENT AND DESCRIPTIONS OF THE SERVICE PUBLISHED ON THE SITE OR A LINKED SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS, AND THERAPY PARTNER SPECIFICALLY DISCLAIMS ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. THERAPY PARTNER DOES NOT REPRESENT OR WARRANT THAT THE CONTENT ON THE SITE IS COMPLETE OR UP-TO-DATE. THERAPY PARTNER IS UNDER NO OBLIGATION TO UPDATE THE SITE, THE SERVICE OR THE CONTENT. THERAPY PARTNER IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY, INCLUDING ANY PAYMENT PROCESSOR. THERAPY PARTNER MAY CHANGE THE SITES, THE SERVICE OR THE CONTENT, OR MAY MAKE IMPROVEMENTS OR CHANGES THERETO, AT ANY TIME WITHOUT NOTICE.
YOU AGREE THAT NEITHER THERAPY PARTNER, NOR ANY OF ITS AFFILIATES, AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES, WILL BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICE OR LOST OPPORTUNITY) ARISING OUT OF, OR IN CONNECTION WITH, THE USE OF THE SITE, THE SERVICE, THE CONTENT OR A LINKED SITE, OR WITH THE DELAY OR INABILITY TO USE THE SITE OR A LINKED SITE, EVEN IF THERAPY PARTNER OR ANY SUCH AFFILIATE, AGENT, OFFICER, DIRECTOR OR EMPLOYEE IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY INCLUDES, WITHOUT LIMITATION, THE TRANSMISSION OF ANY VIRUSES THAT MAY INFECT YOUR EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G. YOU CANNOT ACCESS YOUR INTERNET SERVICE PROVIDER), UNAUTHORIZED ACCESS, THEFT, DATA LOSS, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE. THERAPY PARTNER CANNOT AND DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE, THE SERVICE OR THE CONTENT.
THE MAXIMUM AGGREGATE LIABILITY OF THERAPY PARTNER, AND ITS AFFILIATES, AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES, WILL BE THE GREATER OF (A) TWENTY DOLLARS ($20) AND (B) THE AMOUNT OF THE MONTHLY SUBSCRIPTION FEES PAID PURSUANT TO SECTION 9 HEREOF IN THE TWO (2) MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO THE CLAIM.
You shall defend, indemnify and hold Therapy Partner, and its agencies, service providers, parent, subsidiaries, affiliates, officers, employees, directors, representatives and agents, harmless from any claim, cause of action or demand, loss, liability or damage (including reasonable attorneys’ fees, accounting fees and costs) made or brought by You or by any third party due to, or arising out of, any of the following: (a) Your use of the Sites (or the use of the Sites by Your clients), the Content or the Service or any other program offered on or through the Sites; (b) the violation by You, or Your clients or anyone using Your computer or Your username and password, of these Terms of Service; (c) any user submission posted by You; or (d) the infringement or violation by You, or Your clients or anyone using the Service or the Sites with Your computer or Your username and password, of any Intellectual Property Rights or other right of any person or entity; and (e) Your failure to comply with all data privacy and security laws, rules, regulations and guidance applicable to You or the information provided to You by Therapy Partner, including without limitation PCI DSS (as defined herein), the HIPAA Rules, and any law, rule, regulation, standard or guidance, or other condition or provision identified in Section 24, below. Therapy Partner reserves the right to exclusively defend and control the defense, settlement and resolution of any and all claims arising from the above causes and any such indemnification matters arising therefrom and You agree that You will fully cooperate with Therapy Partner in any such defenses and reimburse Therapy Partner for reasonable fees (including attorney’s fees) and expenses in connection therewith.
18. VIOLATIONS OF SERVICE TERMS - TERMINATION
Therapy Partner reserves the right to seek all remedies available at law and in equity for violations of these Terms of Service, including, without limitation, the right to block access from a particular Internet address to the Sites or the Service. In addition, Therapy Partner may, in its sole discretion, immediately terminate Your use of the Sites if it believes You are violating or have violated these Terms of Service or the terms and conditions of other documents described herein. Therapy Partner reserves the right to terminate the Service and these Terms of Service immediately for any or no reason without notice and without Therapy Partner incurring any liability. Any such termination will be without prejudice to any other rights that Therapy Partner may have against You arising from a violation of these Terms of Service or of the documents described herein.
19. GOVERNING LAW
The laws applicable to the use of the Site and the interpretation of these Terms of Service shall be the laws of the State of Colorado, United States, and applicable federal law, without regard to any conflict of law provisions.
You and Therapy Partner agree that any and all disputes, claims or controversies arising out of or related to the use of the Sites, the provision of the Service or these Terms of Service, including any claims under any statute or regulation ("Disputes"), shall be submitted for binding arbitration. Unless the parties agree otherwise, any arbitration shall take place in the State of Colorado, City and County of Denver, and shall be administered by, and pursuant to the commercial arbitration rules of, the American Arbitration Association.
Disputes shall be arbitrated on an individual basis. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator’s authority to resolve Disputes and to make awards is limited to Disputes between You and Therapy Partner alone, and is subject to the limitations of liability set forth in these Terms of Service. Disputes brought by either You or Therapy Partner against the other party may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by You and Therapy Partner. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of this paragraph be stricken from these Terms of Service or deemed otherwise unenforceable, then the entire section of these Terms of Service labeled "Arbitration" shall be stricken from these Terms of Service.
The provisions of the section of these Terms of Service labeled "Arbitration" and all arbitration awards duly made in connection therewith may be enforced in a court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorney fees) incurred in obtaining the enforcement of this provision, to be paid by the party against whom enforcement is ordered. All arbitration awards duly made under these Terms of Services shall not be subject to review or appeal except as permitted by applicable law. Any provision of these Terms of Service to the contrary notwithstanding (a) You or Therapy Partner may seek interim relief from a court located in the State of Colorado, City and County of Denver to protect such party’s rights or property while arbitration is pending, and (b) Therapy Partner may bypass the aforementioned arbitration process in cases of fraud or other crimes against Therapy Partner, interference with Therapy Partner’s technical operations or violations of Therapy Partner’s rights or property.
21. PRIVACY; ACCEPTABLE USE
By using the Service, in addition to these Terms of Service You must acknowledge and agree to the terms of:
- The Therapy Partner Acceptable Use Policy which can be found online at: https://app.therapypartner.com/aup
- If you have opted in, the Business Associates Agreement (BAA) with Therapy Partner which can be found online at https://app.therapypartner.com/baa
- Such other documents as required by Therapy Partner from time to time.
Users are independently responsible for complying with all applicable laws in all transactions or actions related to Users use of the Services, regardless of the purpose of the use. All Users certify that they will not utilize the Service in any way that would result in the violation of any data privacy or other requirement of the HIPAA Rules, or any other applicable international, federal, state, and local laws and regulations, regardless of whether the Users have opted-in to a Business Associate Agreement with Therapy Partner. However, if you are a Covered Entity as defined by the HIPAA Rules, it is Your responsibility to opt-in and incorporate a Business Associates Agreement into your contract with Therapy Partner.
22. DATA SECURITY, DATA USE, AND DATA DELETION
22.1 HIPAA Rules. Therapy Partner systems are designed for HIPAA Compliance, and will neither use nor disclose Protected Health Information (PHI) except as permitted or required by a BAA, the HIPAA Rules, or as Required By Law. To the extent Therapy Partner is to carry out an obligation of a Covered Entity under the HIPAA Rules, Therapy Partner as a Business Associate (in the event a BAA is incorporated into these Terms of Service) shall comply with the requirements of the HIPAA Rules that apply to Covered Entities in the performance of such obligation. Therapy Partner is permitted to use and disclose PHI:
- to perform any and all obligations as described in the Service Agreement and these Terms of Service, provided that such use or disclosure would not violate the HIPAA Rules if done by the Covered Entity directly;
- otherwise permitted by law, provided that such use or disclosure would not violate the HIPAA Rules, if done by the Covered Entity directly and provided that the Covered Entity gives its prior written consent;
- to perform Data Aggregation services relating to the health care operations of the Covered Entity;
- to report violations of the law to federal or state authorities consistent with 45 C.F.R. § 164.502(j)(1);
- as necessary for Therapy Partner’s proper management and administration and to carry out its legal responsibilities (collectively “Operations”), provided that Therapy Partner may only disclose PHI for Operations if the disclosure is Required By Law or Therapy Partner obtains reasonable assurance, evidenced by a written contract, from the recipient that the recipient will: (1) hold such PHI in confidence and use or further disclose it only for the purpose for which Therapy Partner disclosed it to the recipient or as Required By Law; and (2) notify Therapy Partner of any instance of which the recipient becomes aware in which the confidentiality of such PHI was breached;
- to de-identify PHI in accordance with 45 C.F.R. § 164.514(b), provided that such de-identified information may be used and disclosed only consistent with applicable law.
22.2 PCI DSS & NACHA ACH Rules. Therapy Partner does not directly store, process, or transmit bank account and credit card information. All payment processing, and collection of payment account data, is accomplished via integrations with third-party service providers. These providers are contractually required to maintain compliance with the Payment Card Industry Data Security Standards (PCI DSS), and with all NACHA rules for ACH transaction processing. This includes secure transmission of credit card/bank account information, and encrypted storage of all payment account information.
To the extent that You have signed up for the Messaging Service, the Payment Service, or otherwise store, process, or transmit Cardholder Data (as defined in PCI DSS) via your use of a third party integration with Therapy Partner, You agree, during the Term, to comply with PCI DSS, undergo a yearly self-assessment and submit a yearly "Attestation of Compliance" or complete other certification processes and procedures as required by PCI DSS. You understand that The Service default security settings are configured in a PCI DSS Compliant manner, and that You are wholly responsible for ensuring that any changes You make to these security settings will not result in Your being out of PCI DSS compliance.
22.3 Other Laws/Regulations. To the extent applicable to You or the information disclosed to You by Therapy Partner, You agree that You will comply with all other applicable state, federal, and international laws, regulations, standards and guidance, relating to information security.
22.4 Information Entered via The Service. You acknowledge and agree that any information You enter into the Service, including but not limited to client contact information, client PHI, and financial account information, may be utilized by Therapy Partner for the sole purpose of providing the Service to You. You represent and warrant that You have all rights to provide any such data to Therapy Partner and to grant Therapy Partner the foregoing rights. You have the right, during the Term, to use any available system export or print feature to retrieve data from the Service, but You understand that these functions do not include the ability to print or export full credit card account numbers. Should You desire retrieval of this credit card account information you must make a direct request to the third party payment processing software provider which may provide this service at an additional fee but is under no obligation to do so. Therapy Partner is in no way responsible for your ability or inability to export any data that was entered via a third party service provider, even if that third party provider’s services are integrated with the Service.
22.5 Data Deletion via the Service. You acknowledge that using the system delete function to remove any data related to your client (such deleting a Client Record or deleting session notes from a Client Record), or to remove any personal data about your company or its authorized Users (such as deleting a User profile), only restricts viewing that data from any system interface and prevents utilizing that data for any system function. It does not permanently delete the data from Therapy Partner systems or from any third party systems integrated with Therapy Partner. To have any personal data permanently deleted from Therapy Partner systems, you must make an official request in writing, to the address provided below or by emailing [email protected], that includes the specific information that you would like permanently deleted from Therapy Partner systems. Note that Therapy Partner will require you to verify your identity prior to executing any request to permanently delete data. To have any personal data permanently deleted from a third party system integrated with Therapy Partner you must contact that third party directly, per the mechanisms outlined in your Terms with them. Therapy Partner cannot accept or act upon requests to delete data from third party systems, even if those systems are integrated with the Service.
You have the ability to retrieve your Client Files and Practice Statements by utilizing the system print function to create paper or electronic (.pdf) copies. This functionality is available for all active Therapy Partner accounts, and it is Your responsibility to utilize it to retrieve Your data prior to terminating Your Therapy Partner account. In the event that Therapy Partner terminates Your account, you may request temporary account access to print this information, which Therapy Partner may grant at its sole discretion. In such cases You must submit a request in writing within thirty (30) days after the date of termination and successfully complete an identity verification process, as per Therapy Partner’s standard business practice, prior to temporary access being granted for the sole purpose of printing Client Files and Practice Statements.
Any requests for data return or deletion for data stored by third party service providers integrated with the Service must be made via a direct request to the third party provider which may provide this service at an additional fee but is under no obligation to do so. Therapy Partner is in no way responsible for your ability or inability to obtain the return or deletion of data that was entered via a third party service provider, even if that third party provider’s services are integrated with the Service.
Upon termination of a contract with a Covered Entity that has opted in to a BAA with Therapy Partner, we will remove any PHI stored in our systems on behalf of that Covered Entity where required by applicable law or the Business Associate Agreement with the Covered Entity; any PHI that we continue to maintain, will be stored and protected per the terms of our Business Associate Agreement with the Covered Entity.
23. INTERNATIONAL TRANSACTIONS AND CLIENT DATA
Therapy Partner provides services to United States companies that access the Service from a United States location/IP, and Therapy Partner systems are not designed to accommodate Clients residing outside the United States.. However, it is possible that You may nonetheless utilize Therapy Partner to service clients located outside the United States, and to provide such clients access to Your Client Portal without Therapy Partner’s explicit knowledge or consent.
EXCEPT TO THE EXTENT OF THERAPY PARTNER'S REPRESENTATIONS, WARRANTIES OR COVENANTS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE OR A WRITTEN AGREEMENT BETWEEN YOU AND THERAPY PARTNER, YOUR USE OF THE SERVICE IN NON-US JURISDICTIONS IS AT YOUR OWN RISK AND THERAPY PARTNER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO (I) THERAPY PARTNER’S COMPLIANCE WITH APPLICABLE NON-US LAW; (II) THE LEGALITY OF THE USE OF THE SERVICE IN ANY NON-US JURISDICTION OR WITH REPECT TO THE INFORMATION OF ANY NON-US CITIZENS AND RESIDENTS; AND (III) THE LEGALITY OF ANY TRANSFER OF INFORMATION FROM ANY NON-US JURISDICTION TO THERAPY PARTNER. THERAPY PARTNER WILL NOT, DIRECTLY OR INDIRECTLY, BE LIABLE FOR ANY FINES, JUDGEMENTS, CLAIMS, PENALATIES, OR OTHER LIABILITIES (COLLECTIVELY, "LOSSES") AS A RESULT OF THERAPY PARTNER’S NON-COMPLIANCE WITH APPLICABLE LAW, AND YOU WILL INDEMNIFY THERAPY PARTNER FOR SUCH LOSSES AS SET FORTH IN SECTION 17.
24. EXPORT COMPLIANCE & GOVERNMENT USE
You must comply with U.S., foreign, and international laws and regulations, including without limitation the U.S. Export Administration and Treasury Department's Office of Foreign Assets Control ("OFAC") regulations, and other anti-boycott and import regulations. You agree: (i) that the export, re-export, transfer, re-transfer, sale, supply, access to, or use of the Service to or in a country other than the country in which the Service was first provided to You, or to, by, or for a different end user or end use, may require a U.S. or other government license or other authorization; and (ii) not to, directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or allow access to or use of Service to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under U.S. or other applicable law, including without limitation, to any person or entity located, organized, or residing in Cuba, Iran, North Korea, Sudan, or Syria, or to any person or any entity otherwise controlled or owned, directly or indirectly, by any person currently included on the List of Specially Designated Nationals and Blocked Persons or the Foreign Sanctions Evaders List maintained by OFAC (collectively, "Prohibited Use"). You are responsible for screening for Prohibited Use and obtaining any required licenses or other authorizations and shall indemnify Therapy Partner for any violation by You of any applicable export controls and/or economic sanctions laws and regulations. Therapy Partner may terminate the Agreement and License immediately if Therapy Partner determines, in its sole discretion, that You have breached, intend to breach, or appear to be imminently breaching any of the provisions in this clause.
You agree that the Service and any derivatives thereof are "Commercial Items" as defined in 48 C.F.R. § 2.101, and if You are the Government, then such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2, and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R. § 227.7102-3, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other users pursuant to these Terms of Service and any related agreement(s), as applicable. Accordingly, You will have no rights in or to the Service except as expressly agreed to in writing by You and Therapy Partner.
25. FORCE MAJEURE
Therapy Partner shall not be responsible for delays, nonperformance, damages, lost profits or other losses caused directly or indirectly by any Act of God, including, without limitation, fires, earthquakes, tornadoes or hurricanes, as well as wars, labor disputes, communication failures, legal constraints, power outages, data transmission loss, data loss, failure or interception, incorrect data transmission or any other event outside the direct control of Therapy Partner.
26. ENTIRE AGREEMENT/SEVERABILITY/WAIVER
These Terms of Service, the documents and policies referenced herein, and any other terms and conditions on the Site, constitute the entire agreement between You and Therapy Partner with respect to the Sites and govern Your use of the Sites. If any provision(s) of these Terms of Service is found by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of You and Therapy Partner, and the other provisions of these Terms of Service shall remain in full force and effect. Therapy Partner’s failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Therapy Partner in writing. These terms may not be altered, supplemented, or amended by You without the prior written consent of Therapy Partner.
You must send any notices or other communications required or permitted under these Terms of Service to Therapy Partner in writing via email at [email protected] Therapy Partner may send any notices to You to the most recent e-mail address You have provided to Therapy Partner or, if You have not provided an e-mail address, to any e-mail or postal address that Therapy Partner believes is Your address.
You acknowledge this is an online service. A printed version of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
You are solely responsible for ensuring that each of Your clients who receives Messages, statements, or other communications via the Service has consented to, is willing and capable of receiving, reviewing, printing and saving all materials, disclosures, terms or other content You deliver to them through the Service and has consented to Your use and disclosure of the information required to create and distribute these communications to such clients, including but not limited to providing explicit consent to receive autodialed calls executed via the Service.
Notwithstanding any cancellation or termination of this Service, or of Your account or Your enrollment, Sections 1-5 and 12-27 of these Terms of Service shall survive any such cancellation or termination.
Therapy Partner reserves the right to modify or discontinue the Sites with or without notice to You. Therapy Partner shall not be liable to You or to any third party in the event that it exercises the right to modify or discontinue the Site.
Your acceptance of these Terms of Service and use of the Site do not create a joint venture, partnership, employment or agency relationship between You and Therapy Partner. You shall not represent in any way that You are in partnership with, are a joint venture of, or have any employment of agency relationship with Therapy Partner. You may not assign, delegate or transfer Your rights or obligations under these Terms of Service and any such prohibited assignment, delegation or transfer shall be null and void.
You agree that regardless of any statute or law to the contrary, any claim or cause of action You bring arising out of or related to Your use of the Sites, the provision of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in this Terms of Service are solely used for the convenience of the parties and have no legal or contractual significance.
29. CONTACTING US
3601 Walnut St, Suite 410
Denver, CO 80205
E: [email protected]