General Terms & Conditions
Effective Date: February 2nd, 2016
Please read this Agreement carefully, by signing up for and/or otherwise accessing any of the services or products offered by the Company you agree to be bound by the terms of this Agreement. This Agreement shall become effective as of the date of (1) your electronic signature on or acceptance of this Agreement, (2) the activation of your account or (3) your receipt of an e-mail from the Company confirming your registration, whichever happens first. EITHER YOU OR THE COMPANY MAY TERMINATE THIS AGREEMENT AT ANY TIME, AFTER WHICH ANY AND ALL NOTIFICATIONS OR DATA ASSOCIATED WITH YOUR ACCOUNT MAY BE DELETED AT THE COMPANY’S DISCRETION. ANY AND ALL OUTSTANDING FEES SHALL BE DUE AND PAYABLE UPON TERMINATION. THESE TERMS & CONDITIONS REQUIRE THAT YOU SUBMIT TO THE LAW AND JURISDICTION OF STATE OF TEXAS. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE COMPANY SERVICES.
For the purposes of this Agreement:
1.1. “Account” shall refer to the accounts that Providers and Clients must create in order to access the Company Service.
1.2. “Client” or “Treatment Client” and grammatical variants thereof shall refer to an individual receiving medical, health, or mental health service from a Provider.
1.3. “Company,” “Mentegram,” “us,” “we,” “our” and grammatical variants thereof shall collectively refer to Mentegram, Inc., a Corporation organized and existing under the laws of the State of Delaware located at 1818 E. 12th Street, Austin, Texas 78702, U.S.A. and its assigns and successors in interest.
1.4. “Company Equipment” shall mean computer and telecommunications device, Internet access and/or transmission rights owned, operated, and/or maintained by the Company and/or the Company’s affiliates, agents, or assigns which function to provide the Company Services.
1.5. “Company Service” or “Services” and grammatical variants thereof shall mean the products and services provided by the Company at any given time, including but not limited to third-party tele-health platforms connecting Providers and Clients, information exchange between Providers and Clients, Data analysis, note taking, , and any associated services, which may be changed, amended, cancelled and/or otherwise altered at any time in the Company’s sole discretion.
1.6. “Company Software” or “Software” shall mean any software or application(s) provided by the Company at any given time, whether downloaded to your computer, phone, tablet or other mobile computing device or utilized online as part of the Company Services. The Company Software includes the program and any and all copies or portions thereof, whether standing alone or in combination with other programs, as well as the documentation and other materials delivered in connection with the Software, if any.
1.7. “Fee” shall mean monies and other consideration you are obligated to pay to the Company for the right to use the Company Services subject to the terms and conditions of this Agreement and of the particular Company Services for which you have registered, as outlined on the then-current Website. Fees are subject to change at any time without prior notice.
1.8. “HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996.
1.9. “Intellectual Property Rights” shall mean copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights, and other intellectual property rights or proprietary rights recognized by law .
1.10. “Laws” shall mean the laws, statutes, and regulations then in effect of the United States of America and its various states and dependencies as well as the laws of your country of residence or the country in which you use or access the Company Services and the laws of any provinces, states or dependencies thereof.
1.11. “Parties” shall collectively refer to the Company and you.
1.12. “Payment Account” shall refer to the credit card or such other account as is provided by you and accepted by the Company upon registration to pay for your Services. The Company may add, delete, or modify the methods by which customers can pay for the Company Services at any time without prior notice, in its sole discretion, at which point you must either update your account with a valid Payment Account or your account will be terminated. Payments processed by third party processors are subject to those processors’ terms and conditions of service, and the Company makes no representations or warranties with respect to any third party payment services.
1.13. “Premium Services” shall refer to the Accounts or Company Services for which payment of a Fee is required.
1.14. “Protected Health Information” or “PHI” shall mean protected health information as defined by HIPAA’s Privacy Rule found at 45 C.F.R. § 160.103.
1.15. “Provider” or “Treatment Provider” and grammatical variants thereof shall refer to a health care professional (an individual, or an organization of individuals) who provides medical, health, or mental health service to clients or patients (Client).
1.16. “Servers” and grammatical variants thereof shall mean the online environments that support the Company Service.
1.17. “Suspend” or “Suspension” shall include the disabling of your Account and/or Company Service.
1.18. “Term” shall be, for Premium Services only, one year, one month, or as otherwise stated in the specifications for your Company Services or for any renewal Term thereof.
1.19. “You”, “you”, “your” and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
1.20. “User Data” or “Data” and grammatical variants thereof shall mean any data that you upload or submit to the Servers, Website, or other areas of the Company Service, including but not limited to Protected Health Information (as that term is defined above), or other Content, related to your use of the Company Services or otherwise stored on or transmitted by the Company Service, Servers, or Company Equipment.
1.21. “Your Services” and grammatical variants thereof shall mean the specific Company Services for which you have contracted, subject to the limitations and specifications of the particular service effective as of the date of contract.
1.22. “Website” and grammatical variants thereof shall mean Mentegram.com, the domain and subdomains of the Company and any related or successor domains from which the Company may offer Company Services.
In order to use the Company Services you must comply with the Terms and Conditions of Service. Different parts of the Website may also require compliance with additional terms.
3. Medical Advice
The Information contained on our Website or in the Company Services is not and should not be considered medical advice. No representation or warranty is made that any particular drug or treatment is safe, appropriate or effective, and the Company does not endorse or advocate any treatment method.
- Term and Termination
4.1. Mentegram is continually evolving and innovating. We reserve the right to change the Website, the Content we offer, or the Company Services, and the products or Company Services you may access, at any time without notice. You or the Company may terminate this Agreement at any time for any reason, with or without cause. You may terminate by (a) providing written notice of termination to the Company pursuant to this Agreement, or (b) providing notice of termination through customer service.
4.2. Notwithstanding the provisions of Section 4.1. to the contrary, the initial Term for Premium Services shall be one year, one month, or as otherwise stated in the specifications for Your Services, at the end of which Term this Agreement shall renew automatically for the same period unless terminated prior to renewal pursuant to this Agreement. The Company may, but is not obligated to, allow you change the duration of the Term or the specific services for Premium Services at the beginning of any renewal period, and you agree that the Company may debit your Payment Account for any resulting Fees.
4.3. Your termination of a Premium Services account shall be effective as of the end of the then-current Term. Upon any termination by you, your Account will no longer be accessible. Any cancellation request by you will be handled within 30 days of receipt of such a request by Mentegram. All other terminations, including a termination by the Company with or without cause, shall be effective immediately.
4.4. You further agree that in the event that the Company believes, in its sole discretion, that you have breached any provision(s) of this Agreement, including but not limited to Sections 5 or 11, the Company may, without any liability to you and in addition to any other remedies, terminate or suspend any and all Accounts registered by you or your access to Your Services and your Data without prior notice to you. If your Account is suspended for non-payment of Fees, the Company may but is not obligated to restore your Premium Services account for the remainder of the Term upon written notice to the Company and payment in full of all Fees due and owing on the account, provided such notice is provided to the Company within one year after the first day of the then-current Term (the “Notice Period”). Premium Services accounts not restored during the Notice Period will be terminated immediately upon the expiration of same.
4.5. Except as otherwise required by applicable law, upon termination of this Agreement all data, including but not limited to notifications or other files associated with Your Services, your Account, and your Data, may be irrevocably deleted and all transmission of data will cease. The Company may, in its sole discretion, make your Data information or content available to you to the extent it has not been deleted.
4.6. After termination, the Company will have no further obligation to provide the Company Services, except to the extent we are obligated to provide you access to your health records or Providers are required to provide you with continuing care under their applicable legal, ethical and professional obligations to you. Upon termination of your right to use the Company Services or Website or our termination of the Company Services or Website, all licenses and other rights granted to you by these Terms will immediately terminate. After termination, Data will be retained in accordance with our policies and will be deleted or destroyed without notice in a manner consistent with such policies.
4.7. Your obligations under this Agreement survive and extend past any termination or suspension of the Company Services to you.
5.1. For Premium Services, all Fees must be paid in advance of the provision of services for the entire Term. Fees must be paid in United States Dollars via the Payment Account, and are nonrefundable (except as expressly permitted otherwise by this Agreement), including any Fees paid in advance for the term during which you terminate. You agree that the Company may automatically debit the Fee and any additional fees from the Payment Account unless specifically provided otherwise. You also agree that the Company may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to Your Services. If payment in full is not received by the Company from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for Your Services without demand by the Company. Termination of your Account shall not relieve you of any obligation to pay any accrued fees or charges.
5.2. Your credit or debit card issuer, directly or through third-party service providers, may provide the Company with updated credit card numbers, expiration dates, or other information which may be used to renew services or make payments under this Agreement. Should the Company choose, in its sole discretion, to participate in such auto-update programs, you agree that the Company may share your Payment Account information with such third-party providers and may update Your Payment Account with information provided through such services. You authorize any and all charges to your Payment Account using such updated information, whether or not you or the Company have prior notice of same. The Company cannot guarantee that your Payment Account will be updated, and you acknowledge and agree that it is your responsibility to keep your payment information current and up-to-date at all times and that you shall be liable to the Company for your failure to do so, including for any charges that the Company may incur as a result of your failure to keep your payment information current. The Company shall have no liability for declined payments or incomplete or out-of-date Payment Account information.
5.3. The Company may offer promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for Your Services. Any such promotions or modifications shall not affect your obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Promotional fees and special offers may not be combined.
5.4. Certain special offers for Premium Services may include a free introductory period. The Company reserves the right at any time to withhold, modify, or discontinue, temporarily or permanently, such introductory or promotional offers, with or without notice.
5.5. You shall pay all costs of collection, including reasonable attorney’s fees and costs, in the event any invoice requires collection efforts as determined in the Company’s sole discretion. Except where prohibited by Law, all accounts referred to a collection agency shall be subject to an additional fee, which must be paid in full before the account is reactivated.
5.6. You agree that the Company may start the provision of services immediately, and that you will not be entitled to cancellation or a “cooling off” period except to the extent a waiver of those rights is prohibited by law.
Subject to and conditioned upon the Company’s retained rights and all other terms and conditions set forth in this Agreement, the Company offers the Company Services as soon as practicable after registration. In order to access the Service you will be required to become a registered user of the Service by creating a Mentegram account (“Account”). Only one person may use an Account. By creating an Account, you expressly consent to the use of electronic records to store information related to these Terms or your use of the Service. You are responsible for maintaining the confidentiality of both your password and your Account and are fully responsible for all activities that occur under your password and your Account, whether or not you have authorized such activities or actions. Mentegram is not responsible for any unauthorized access to your Account. You agree to immediately notify the Company of any unauthorized uses of the Account or any other breaches of security. The Company cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will the Company be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The Company Services are subject to the following conditions and restrictions:
6.1.1. Mentegram is a third-party tele-health platform that connects Providers to Clients in order to (i) facilitate exchange of information between end Clients and their Providers and (ii) provide additional Service to both the Provider and the Client such as analysis and processing of the User Data uploaded to the Company Services, note taking, and other service related to therapy and mental health treatment.
6.1.2. Mentegram does not provide and our Company Services does not include mental health care or professional service related to medical care. Rather, we are a technology provider that provides a platform or space in which Providers can provide these services to Clients. The Providers providing services through the Company Services are not employees or agents of Mentegram, nor are they associated with Mentegram in any way. Each provider is required to obtain the Clients’ informed consent before treatment. Mentegram does not endorse any Providers nor any methods or actions that may be found on this Service. It is the responsibility of the Clients to verify the competency of the Providers.
6.1.3. If you are a Provider you create an Account at mentegram.com by providing the required registration information (“Registration Data”). You agree to provide accurate, current and complete information about yourself as prompted by the registration form (“Registration Data”) and to use the account management tools provided to keep your Registration Data accurate, current and complete.
6.1.4. If you are a Client you create an Account by installing the Company Software and agreeing to the terms and conditions therein. To create an Account, you must be of legal age to form a binding contract. If you are not of legal age to form a binding contract, you may not register to use the Company Service (See Section 6.5 if the Client is a minor).
6.1.5. If you receive Services from the Company under this Agreement and you are presented with a license agreement, the terms of that agreement apply. Otherwise, upon payment of all fees due and owing to the Company under this Agreement, the Company hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the Company Service and all related documentation for your own personal or business use during the term of this Agreement as set forth in these Terms of Service and expressly conditioned upon your Account remaining active, in good standing, and in full compliance with these Terms of Service. Any rights not expressly granted herein shall be reserved for the Company. Source code or other information pertaining to the logic design of the Company Services is specifically excluded from the license granted hereunder.
6.1.6. You recognize that the Company Services and all related information, including but not limited to any and all updates, improvements, modifications, and enhancements, are proprietary, and that all rights thereto, including copyright, are owned by the Company or, if sublicensed by the Company, by the respective owners of the Service. You further acknowledge that you have been advised that the Company Service, including updates, improvements, modifications, and enhancements, constitutes a trade secret of the Company, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to the Company, and that its use and disclosure must be carefully and continuously controlled.
6.1.7. The Company or, if sublicensed by the Company, the respective owners of the Company Services shall at all times retain title to all the Company Services and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
6.1.8. Unless provided otherwise in the specifications for Your Services, the Company Services supplied hereunder are for your personal or business use. The Company Services are to be used only for the purposes specified in this Agreement and specifically as restricted in the following two subparagraphs of this Section 6.
220.127.116.11 You will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the Company Services, whether such Company Services are in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for your use pursuant to this Agreement, nor; (ii) provide or make the Company Services available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement, nor; (iii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement, nor; (iv) use the Company Services in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than you, nor; (v) alter or modify the Company Services, nor; (vi) sell, assign, sublicense, rent, lease or otherwise transfer the Company Services or any rights in connection therewith, nor (vii) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of the Company. In order to protect the Company’s trade secrets and copyrights in the Company Services, you agree to reproduce and incorporate the Company’s trade secrets or copyright notice in any copies, modifications or partial copies.
18.104.22.168 You agree to notify the Company forthwith if you obtain information as to any unauthorized possession, use or disclosure of any Company Services by any person or entity, and further agree to cooperate with the Company at the Company’s expense, in protecting the Company’s proprietary rights.
6.1.9. In the event of termination of this Agreement, or upon any act which shall give rise to the Company’s right to terminate, or upon the expiration of the license for the Company Services which is subject to a limited-duration license, any and all licenses granted under this Section 6.1 shall terminate automatically, and you will remove, erase or destroy the Company Services and documentation and all copies thereof, wherever located, without demand or notice.
6.1.10. The Company may stop providing the Company Services or any updates thereto, at any time without notice or any further liability to you.
6.1.12. You are responsible for backing up your Data on your own computer. The Company does not warrant or otherwise guarantee that it will backup your Data or that data which has been backed up can be retrieved, and will not be responsible for any archiving or backup of your Data. If any of your Data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable, whether due to termination or suspension of your Account pursuant to this Agreement or otherwise, the Company will have no obligation or liability to you.
6.1.13. The Company may on occasion need to interrupt the Company Services with or without prior notice to protect the integrity or functionality of the Company Services. You agree that the Company will not be liable for any interruption of the Company Services (whether intentional or not), and you understand that you will not be entitled to any refunds of fees or other compensation for interruption of service. Likewise, you agree that in the event of loss of any Data, we will not be liable for any purported damage or harm arising therefrom.
6.2.1. The Company may, in its sole discretion, provide you with the Company Software in combination with Your Services. If you receive Software from the Company under this Agreement and you are presented with a license agreement, the terms of that agreement apply. Otherwise, upon payment of all fees due and owing to the Company under this Agreement, the Company hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the Company Software and all related documentation for your own personal or business use during the term of this Agreement as set forth in these Terms of Service and expressly conditioned upon your Account remaining active, in good standing, and in full compliance with these Terms of Service. Any rights not expressly granted herein shall be reserved for the Company. Source code or other information pertaining to the logic design of the Company Software is specifically excluded from the license granted hereunder. You agree that you will not (i) allow any person or entity not authorized by the Company to use or access the Company Software, (ii) attempt to copy any ideas, features, functions or graphics contained in the Company Software; (iii) use the Company Software in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than you, (iv) alter or modify the Company Software, (v) sell, assign, sublicense, rent, lease or otherwise transfer the Company Software or any rights in connection therewith, or (vi) attempt to translate, disassemble, decompile, reverse assemble, reverse engineer all or any part of the Company Software or otherwise attempt to derive the source code for the Company Software.
6.2.2. The Company reserves the right to charge for the Company Software or any upgrades therefor at any time.
6.2.3. You recognize that the Company Software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the Company Software at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by the Company or, if sublicensed by the Company, by the respective owners of the Software. You further acknowledge that you have been advised that the Company Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of the Company, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to the Company, and that its use and disclosure must be carefully and continuously controlled.
6.2.4. The Company or, if sublicensed by the Company, the respective owners of the Company Software shall at all times retain title to all the Company Software and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
6.2.5. Unless provided otherwise in the specifications for the Company Services, the Company Software supplied hereunder is for your personal or business use. The Company Software is to be used only for the purposes specified in this Agreement and specifically as restricted in the following two subparagraphs of this Section 6.
22.214.171.124 You will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the Company Software, whether such Company Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for your use pursuant to this Agreement, nor; (ii) provide or make the Company Software available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement, nor; (iii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement, nor; (iv) use the Company Software in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than you, nor; (v) alter or modify the Company Software, nor; (vi) sell, assign, sublicense, rent, lease or otherwise transfer the Company Software or any rights in connection therewith, nor; (vii) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of the Company. In order to protect the Company’s trade secrets and copyrights in the Company Software, you agree to reproduce and incorporate the Company’s trade secrets or copyright notice in any copies, modifications or partial copies.
126.96.36.199 You agree to notify the Company forthwith if you obtain information as to any unauthorized possession, use or disclosure of any Company Software by any person or entity, and further agree to cooperate with the Company at the Company’s expense, in protecting the Company’s proprietary rights.
6.2.6. Certain Company Software is provided for online use as part of the Company Services (the “Company Online Software”). The Company Online Software is hosted software which runs on hosted servers, and you may not download, install, store or make any copies of the Company Online Software, nor may you sublicense the Company Online Software. You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the Company Online Software or any copies thereof and not to assist any third party in doing so. The Company Online Software is designed to be used through the Company user interface and, as such, may be utilized by any authorized user from any computer or workstation. This license is automatically revoked upon termination of this Agreement. The Company reserves the right to modify or discontinue the Company Online Software at any time without notice.
6.2.7. The Company may provide its customers with the ability to download certain third-party software (the “Third Party Software”). The license conditions governing the use of the Third Party Software may differ from the Company’s own software licenses. Customers of the Company are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. THE PROVISION AND OFFERING OF SUCH THIRD PARTY SOFTWARE BY THE COMPANY DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN THE COMPANY MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
6.2.8. In the event of termination of this Agreement, or upon any act which shall give rise to the Company’s right to terminate, or upon the expiration of the license for the Company Software which is subject to a limited-duration license, any and all licenses granted under this Section 6.2 shall terminate automatically, and you will remove, erase or destroy the Company Software and documentation and all copies thereof, wherever located, without demand or notice.
6.2.9. The Company may stop providing the Software or any updates thereto, including but not limited to the Third-Party Software, at any time without notice or any further liability to you.
6.3. Protected Health Information, Data, and Use of Your Information
6.3.1. The Company Software allows you to enter, store, and access PHI, including medical history, current conditions, symptoms, complaints, allergies and medications, and for this information to be communicated between a Client and a Provider.
6.3.2. It is the Provider’s responsibility to use and disclose any and all information about the Company Services in accordance with applicable state and federal laws, including, without limitation, obtaining any consents or authorizations that may be required for your information to be shared with third parties and in compliance with all federal regulations related to healthcare and privacy and tele-health services. The Company disclaims any and all liability in connection with the Provider’s disclosure of this information the Company will make no use of PHI that is not permitted by this Agreement or that is prohibited by applicable law, including but not limited to HIPAA.
6.4. Errors and Inaccuracies
6.4.1. The information on the Website including, without limitation, information regarding pricing, may contain typographical errors or other errors or inaccuracies, and may not be complete or current. The Company reserves the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice to you. The Company will not, however, guarantee that any such errors, inaccuracies, or omissions will be corrected. The Company reserves the right to refuse to fill any orders or provide Company Services that are based on inaccurate or erroneous information on the Website, including, without limitation, incorrect or out-of-date information regarding pricing, payment terms, or for any other lawful reason.
7. Business Associate Agreement
By agreeing to these terms and conditions you also agree to the terms in Mentegram’s Business Associate Agreement (See Exhibit A)
8. Refund Policy
Monthly Accounts: After the first thirty days, you may terminate at any time and for any reason however, no refunds will be provided.
Annual Accounts: After the first thirty days, if for any reason, you decide to terminate the Company Services, then the Company will provide a refund for the unused and prepaid portion of your annual subscription fees, less set up and development costs, if applicable.
This right of refund is your sole and exclusive remedy upon termination of your Account for any reason. All other provisions of the Agreement apply including but not limited to Section 10 (Company’s Limited Liability) and Section 24 (Arbitration).
9. No Warranties by the Company
Your use of the Company Services, Company Software and Content is at your sole discretion and risk. The Company Services, Company Software, Content, and all materials, information, products and Services included therein, are provided on an “AS IS” and “AS AVAILABLE” basis without warranties of any kind. THE COMPANY AND ITS LICENSORS AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICE AND CONTENT, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, COURSE OF DEALING, OR COURSE OF PERFORMANCE. THE COMPANY AND ITS LICENSORS AND AFFILIATES MAKE NO WARRANTY THAT THE CONTENT YOU ACCESS ON OUR WEBSITE OR USING OUR COMPANY SERVICES SATISFIES THE LAWS AND REGULATIONS REQUIRING THE DISCLOSURE OF INFORMATION FOR PRESCRIPTION DRUGS. IN ADDITION, THE COMPANY AND ITS LICENSORS AND AFFILIATES DISCLAIM ANY WARRANTIES REGARDING SECURITY, ACCURACY, RELIABILITY TIMELINESS AND PERFORMANCE OF THE COMPANY SERVICES OR THAT THE SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED. NO ADVICE OR INFORMATION PROVIDED TO YOU BY THE COMPANY WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. WE MAKE NO REPRESENTATIONS CONCERNING, AND DO NOT GUARANTEE, THE ACCURACY OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY INFORMATION PROVIDED THROUGH THE SERVICE OR THEIR APPLICABILITY TO YOUR INDIVIDUAL CIRCUMSTANCES. OUR COMPANY SERVICES AND WEBSITE CONTENT ARE DEVELOPED FOR USE IN THE UNITED STATES AND THE COMPANY AND ITS LICENSORS AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTY CONCERNING THE SERVICE OR CONTENT WHEN THEY ARE USED IN ANY OTHER COUNTRY. THE COMPANY DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE COMPANY SERVICES WILL BE FREE OF VIRUSES, “WORMS”, “TROJAN HORSES”, OR OTHER HARMFUL COMPONENTS. SOME JURISDICTIONS DO NOT PERMIT US TO EXCLUDE WARRANTIES IN THESE WAYS, SO IT IS POSSIBLE THAT THESE EXCLUSIONS WILL NOT APPLY TO OUR AGREEMENT WITH YOU. IN SUCH EVENT THE EXCLUSIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
10. Company’s Limited Liability
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE COMPANY SERVICES, WEBSITE, COMPANY SOFTWARE, OR THE CONTENT, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, THE COMPANY’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. NOTHING HEREIN SHALL LIMIT THE POTENTIAL PROFESSIONAL LIABILITY OF OUR TREATMENT PROVIDERS OR OTHER LICENSED HEALTHCARE PROFESSIONALS ARISING FROM OR RELATED TO MEDICAL OR MENTAL HEALTH ADVICE, DIAGNOSIS, OR TREATMENT THEY PROVIDE TO YOU, EXCEPT AS PROVIDED UNDER APPLICABLE STATE LAWS. IN MANY JURISDICTIONS, PROVIDERS ARE REQUIRED TO REPORT CONFIDENTIAL INFORMATION IF THEY HAVE REASON TO BELIEVE THAT A PATIENT IS LIKELY TO HARM OTHERS OR HIMSELF/HERSELF. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR THE DISCLOSURE OF YOUR CONFIDENTIAL INFORMATION BY A PROVIDER FROM WHOM YOU RECEIVE MENTAL HEALTH SERVICE. THE COMPANY IS NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF A TREATMENT PROVIDER PROVIDING MENTAL HEALTH SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, THE COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE COMPANY SERVICES, AND THE COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE THE COMPANY FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF THE COMPANY FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO TEN DOLLARS ($10).
11. Your Additional Obligations and Warranties
11.1 You acknowledge that only you may use your Account and you agree and warrant that you shall not permit anyone else to use your Account or authorize any third party to access your Account on your behalf. You are responsible for all activity that takes place with respect to your account, and you agree that in the event the Company believes or has reason to believe, in its sole discretion, that you have breached this Agreement or any of the warranties in this Section11, the Company may, without prior notice to you and in the Company’s sole and exclusive discretion, suspend the provision of the Company Services and/or terminate this Agreement, without any liability of any kind. As more completely set forth in Sections 10, 11 and 14, you waive any and all claims you may have, now and forever, against the Company relating to any action taken under this Section 11.1, and agree to indemnify and hold harmless the Company from and against any claims brought by third parties as a result of your User Data or your use of the Company Services.
11.2. You acknowledge that the Company Services may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Company Services. Any violation of these restrictions may result in immediate barring from the use of the Company Services and/or further actions in the sole discretion of the Company, including the cooperation with the appropriate legal authorities into any investigation and prosecution of your actions.
11.3. You agree and warrant that you shall not send mass unsolicited, unauthorized or unwanted communications or solicitations; that you shall not use your Account for impermissible or abusive postings or excessive or repeated off-topic or commercial communications; that you will not send any form of junk mail communication; and that you shall not engage in any other form of spamming, spoofing, phishing, or bombing.
11.4. You agree and warrant that your use of the Company Services and the Company Equipment, and all sales, distributions, advertisement, or promotion which are in any way associated with your use of the Company Services or the Company Equipment, shall at all times comply with your warranties under this Section 11 as well as all relevant laws, including but not limited to CAN-SPAM.
11.5. You agree and warrant that you shall not damage, disable, overburden, or impair the Company Services; interfere with anyone else’s use or enjoyment of the Company Services; or interfere with, defame, or abuse the Company or its officers, employees, or agents.
11.6. You affirmatively represent, agree and warrant that your User Data is owned by You or licensed from another Party and the use or distribution of your User Data does not infringe the intellectual property rights of others, including, but not limited to, copyrights, trademark and service mark rights, patent rights and rights of publicity, both in the United States and throughout the world.
11.7. You agree and warrant that any and all material(s) of every kind which you store or transmit using the Company Services, Company Software or the Company Equipment shall at all times be free from any and all damaging software defects, including, but not limited to, software “viruses”, “worms”, “Trojan Horses,” and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to access the Company Equipment or Website or another person’s website without authorization, or use the Company Services to carry out, or assist in the carrying out of, any “denial of service” attacks on any other website or internet service.
11.8. You agree and warrant that you shall not use the Company Services to collect or store personal data about other users without their express permission.
11.9. You agree and warrant that you shall not circumvent, disable, or otherwise interfere with security-related features of the Company Services or features that prevent or restrict use or copying of any content.
11.10. You agree and warrant that you shall not use any meta tags or other hidden text or metadata utilizing a Company name, trademark, URL or product name.
11.11. You agree and warrant that you shall not attempt to probe, scan or test the vulnerability of any Company system or network or breach or impair or circumvent any security or authentication measures protecting the Company Services.
11.12. You agree and warrant that you shall not attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover or determine the source code of any Software or any proprietary algorithm used to provide the Company Services.
11.13. You agree and warrant that you shall not resell or redistribute the Company Services or any part thereof, including but not limited to your Account, notifications, alerts, or use any unauthorized means to modify or reroute the Company Services (or to attempt same).
11.14. You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the Company Services and that no taxing authorities shall have any claim against the Company or any persons affiliated therewith for the payment of such taxes.
11.15. You represent and warrant that you are over thirteen years of age and are fully competent to enter into this Agreement.
11.16. You represent and warrant that you are not a national or resident of any country subject to U.S. Treasury Department embargo restrictions, and that you are not listed in the “Entity List” or “Denied Persons List” maintained by the US Department of Commerce or the list of “Specially Designated Nationals and Blocked Persons” maintained by the US Department of Treasury. You further acknowledge that you are not a national or resident of a country whose name is otherwise omitted from the registration form for the Company Services. Residents of countries which are serviced by a Company affiliate are required to contract with those Company affiliates, and you represent and warrant that you are not a resident of one of those countries.
11.17. You grant to the Company and to the Company’s Affiliates a perpetual, irrevocable, fully-paid up, nonexclusive, transferable, and worldwide license to use all of your User Data in the performance of the Company Services and in any other manner related thereto or otherwise permitted under this Agreement.
- Your Rights and Obligations with Respect to Your Data
You retain any and all Intellectual Property Rights you already hold under applicable law in User Data you upload or submit to the Company Services, subject to the rights, licenses, and other terms of this Agreement. In connection with User Data you upload or submit to the Company Services, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize the Company to use the User Data in the manner contemplated by the Company Services and this Agreement. You agree that by uploading or submitting any Content to or through the Servers, Website, or other areas of the Company Services, you hereby automatically grant the Company a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, and display the Data non-publicly and internally to the Company solely for the purposes of providing the Company Services. You agree that the license includes the right to copy, analyze and use any of your User Data as the Company may deem necessary or desirable for purposes of debugging, testing, or providing support or development service in connection with the Company Services and future improvements to the Company Services. The license granted in this Section is referred to as the “Service Data License.” You also acknowledge that the Service Data License granted to the Company with respect to your Content will survive the termination of your Account to permit the Company: (i) to retain server copies of particular instances of your User Data, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) to enable the exercise of the licenses granted in this Section for any other copies or instances of the same User Data that you have not specifically deleted from the Company Services.
13. Confidentiality, Trademark and Copyright
13.1 “Mentegram” is a service mark of the Company, all rights reserved. The trademarks, logos, trade names, taglines, service marks and trade dress displayed on this Website (collectively, the “Marks”) belong to the Company and/or its affiliates or third parties which have licensed those rights to the Company (“Partners”); The Company and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner’s prior written consent. All other trademarks, product names, and company names and logos appearing on the Company’s Website are the property of their respective owners.
13.2 You acknowledge and agree that the Company and its licensors own all right, title, and interest in and to the Company Services, including all Intellectual Property Rights therein, other than with respect to your User Data. Except as expressly granted in this Agreement, all rights, title, and interest in and to the Company Services, except all User Data, and in and to the Mentegram Marks are reserved by the Company. Copyright, trademark and other laws of the United States and foreign countries protect the Service and the Mentegram Marks.
13.3 Unless expressly stated otherwise on the Company Website, you should assume that all content, images, and materials appearing on this Website (collectively the “Company Content”) are the sole property of the Company. Both U.S. and international copyright and other intellectual property laws and treaties protect such Company Content. You may not use, reproduce, display, or sell any Company Content without the Company’s prior written consent. You may not link to any page or frame any portion of the Company’s website in such a way as to remove, cover, alter, or obscure the Company’s trademarks or as would otherwise confuse viewers as to the origin of the content.
14. Your Indemnification of the Company
You agree that you shall fully defend and indemnify the Company, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys’ fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 11, your access to or use of the Company Services, Company Software, Website, or Content, any activity related to your Account by you or any other person accessing the Website or Company Services through your Account, including, without limitation, negligent or wrongful conduct, or your violation of a third party’s intellectual property rights. You further agree to defend, indemnify and hold harmless the Company, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’ fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that the Company shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense. The Company reserves the right, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
15. No Joint Venture or Partnership
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between the Company and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between the Company and you. The Company shall have no control or ownership interests of any kind in your business. The Company shall have no direct financial or other interest in, nor in any way “own” any online venture pertaining to your use of the Company Services or the Company’s Equipment. The Company’s relationship to you shall be restricted to matters pertaining to the provision of the Company Services as set forth in this Agreement.
16. Services Rendered on a Non-Exclusive Basis
Any and all services which are or may be provided to you by the Company pursuant to this Agreement, including the licensure of rights herein, are not exclusive and nothing in this Agreement shall limit or restrict the Company from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict the Company from engaging in any activities similar to yours or in competition with you.
17.1.1. comply with legal process or other legal requirements;
17.1.2. protect and defend the rights or property of the Company or its officers, agents, affiliates, licensees, and customers; or
17.1.3. carry out its obligations under or enforce this Agreement; or
17.1.4. investigate violations of this Agreement or assist with criminal or civil investigations.
17.2. INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE COMPANY MAY DISCLOSE PERSONAL INFORMATION ABOUT THEM AND THEIR ACCOUNT PURSUANT TO THIS SECTION, AND WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW INCLUDING BUT NOT LIMITED TO THE LAW IN THE JURISDICTION YOU RESIDE.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
19. Non-Enforcement Does Not Constitute Waiver
Failure of the Company at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of the Company.
20.1. The Company may provide notice to you via sms to the mobile phone or e-mail sent to the e-mail address associated with your Account at the time such notice is sent. Such notice is deemed effective at the date and time of transmission, whether you receive it or not, and shall be deemed written notice for the purposes of this Agreement.
20.2. You may provide notice to the Company by personal delivery; by addressing the notice as indicated below and depositing the same by registered or certified mail, postage prepaid, in the United States mail; or by Federal Express or other nationally-recognized courier. Such notice, statement or other document so delivered to the Company, except as this Agreement expressly provides otherwise, shall be conclusively deemed to have been given when first personally delivered, on the date of delivery or on the first date of receipt. Notice may not be sent to the Company via e-mail.
21. Force Majeure
21.1. In the event of “force majeure” (as defined below), the Company may terminate this Agreement without liability to you. For purposes of the Agreement, “force majeure” shall mean circumstances or occurrences beyond the Company’s reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which the Company cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the Company Services are located or maintained or through which the Company Services are provided, and non-availability of any permits, licenses and/or authorizations required by governmental authority.
22. No Assignment by You; Assignment by the Company
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without the Company’s prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. The Company may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion, without consent by or notice to you.
23. Jurisdiction, Venue, and Waiver of Jury Trial
23.1. YOU AGREE TO NEGOTIATE WITH THE COMPANY IN GOOD FAITH TO RESOLVE OR SETTLE ANY CLAIM OR DISPUTE IN ANY WAY RELATING TO OR CONCERNING THIS AGREEMENT.
23.2. ANY AND ALL DISPUTES WHICH ARE NOT FIRST RESOLVED INFORMALLY MUST BE BROUGHT IN EITHER THE COURT OF TRAVIS COUNTY, TEXAS OR THE UNITED STATES DISTRICT COURT IN AUSTIN, TEXAS, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT AND/OR YOUR ACCOUNT(S) WITH THE COMPANY. You and we irrevocably consent to personal jurisdiction and venue in such courts and you waive any challenge which you have or which may hereafter arise to personal jurisdiction or venue in such courts. You further agree that the Company shall be entitled to collect its attorneys’ fees, costs and other expenses in the event that the Company acts to enforce this forum selection clause, regardless of whether the Company prevails in the underlying action.
23.3. In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND THE COMPANY THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT AND/OR YOUR ACCOUNT(S) WITH THE COMPANY, and that such waiver shall be enforceable up to and including the day that trial is to start. Should any legal fees, costs, or other expenses be incurred by the Company with regard to enforcement of this jury waiver provision, the Company shall be entitled to recover such legal fees, costs, or other expenses without regard to whether the Company prevails in the underlying case.
23.4. Neither you nor the Company may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. YOU AND THE COMPANY ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION
23.5. This Agreement shall be interpreted according to the laws of the State of Texas, without regard to conflicts of law principles.
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000.00 USD, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. If a party elects arbitration, that party will initiate such arbitration through JAMS. The parties must comply with the following rules:
1. The arbitrator shall be selected from JAMS and the arbitration shall be conducted in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures, except as otherwise specified below;
2. the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration;
3. the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and
4. any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Any dispute, controversy, or disagreement arising out of or relating to these Terms, the breach thereof, or the subject matter thereof, where the total amount of the award sought is $10,000.00 USD or greater, shall be settled exclusively by binding arbitration. The arbitrator shall be selected from JAMS and the arbitration shall be conducted in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures. The arbitration shall be held in Travis County, Texas, unless the parties mutually agree to have such proceeding in some other locale. To the extent of the subject matter of the arbitration, the arbitration shall be binding not only on all parties to these Terms, but on any other entity controlled by, in control of or under common control with the party to the extent that such affiliate joins in the arbitration, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
25. Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the Parties’ respective heirs, personal representatives, executors, administrators, successors and assigns.
26. Entire Agreement
This Agreement constitutes the entire Agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of the Company has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and you hereby acknowledge and agree that you have not executed this Agreement in reliance upon any such representation or promise. This Agreement is solely for the benefit of you and the Company.
27.1. This Agreement may be materially altered by the Company by posting the new version of the Agreement at www.mentegram.com and if posted in this manner, shall be effective immediately upon posting such notice. You accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty days of the posting of notice of such change.
27.2. You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of the Company. No additional or conflicting term in any other document used by you will have any legal effect.
28. Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
29. Contact Information
The Company is headquartered in Austin, TX. Emails may be sent to: firstname.lastname@example.org. Correspondence sent by mail, courier, or personal service should be to the following address:
1818 E. 12th Street
Austin, Texas 78702
Business Associate Agreement
This Business Associate Agreement (the “Agreement”) is entered into at the date and time your Mentegram Provider account is created (the “Effective Date”) by and between you (“Covered Entity”) and Mentegram, Inc., a Delaware corporation, with offices at 1818 E 12th St, Austin, TX 78702 (“Business Associate”). Covered Entity and Business Associate, collectively, may be referred to herein as the “Parties”.
ARTICLE 1: INTRODUCTION
1.1 Covered Entity and Business Associate enter into this Agreement to comply with the requirements of Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, including the privacy, security, breach notification and enforcement rules at 45 C.F.R. Part 160 and Part 164, as well as the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (“HITECH”), as amended, and other applicable federal and state laws (collectively the “HIPAA Rules”).
1.2 This Agreement is intended to ensure that Business Associate will establish and implement appropriate safeguards for certain individually identifiable Protected Health Information relating to patients of Covered Entity (“PHI” as that term is defined below) that Business Associate may receive, create, maintain, use or disclose in connection with certain functions, activities and services that Business Associate performs for Covered Entity. The functions, activities and services that Business Associate performs for Covered Entity are defined in one or more agreements between the Parties (the “Underlying Agreements”).
ARTICLE 2: DEFINITIONS
2.1 Terms used but not otherwise defined in this Agreement shall have the same meaning as those terms in the HIPAA Rules, which definitions are incorporated in this Agreement by reference
2.2 For purposes of this Agreement:
2.2.1 “Electronic Protected Health Information” or “ePHI” shall have the meaning given to such term under the Privacy Rule and the Security Rule, including, but not limited to, 45 C.F.R. 160.103, as applied to the information created, received, maintained or transmitted by Business Associate from or on behalf of Covered Entity
2.2.2 “Individual” shall have the same meaning given to such term in 45 C.F.R. § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. § 164.502(g).
2.2.3 “Protected Health Information” or “PHI” shall have the meaning given to such term in 45 C.F.R. 160.103, limited to the information created, received, maintained or transmitted by Business Associate from or on behalf of Covered Entity.
2.2.4 “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information published in 45 C.F.R. Parts 160 and 164, Subparts A and E.
2.2.5 “Required by Law” shall have the meaning given to such term in 45 C.F.R. 164.103.
2.2.6 “Secretary” shall mean the Secretary of the Department of Health and Human Services or his or her designee.
2.2.7 “Security Rule” shall mean the Security Standards at 45 C.F.R. Part 160 and Part 164, Subparts A and C.
ARTICLE 3: GENERAL OBLIGATIONS OF BUSINESS ASSOCIATE
3.1 Use and Disclosure. Business Associate agrees not to use or disclose PHI, other than as permitted or required by this Agreement or as Required By Law. To the extent Business Associate is carrying out one or more of Covered Entity’s obligations under the Privacy Rule pursuant to the terms of the Underlying Agreement or this Agreement, Business Associate shall comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of such obligation(s).
3.2 Appropriate Safeguards. Business Associate shall use appropriate physical, technical and administrative safeguards, and shall comply with the Security Rule with respect to ePHI, to prevent use or disclosure of PHI other than as provided for by this Agreement or as Required by Law.
3.3 Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate as a result of a use or disclosure of PHI by Business Associate in violation of this Agreement’s requirements or that would otherwise cause a Breach of Unsecured PHI.
3.4 Breach Reporting. Business Associate shall report to Covered Entity any use or disclosure of PHI not permitted under this BAA, Breach of Unsecured PHI or Security Incident, without unreasonable delay, and in any event no more than thirty (30) days following discovery; provided, however, that the Parties acknowledge and agree that this Section constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence of attempted but Unsuccessful Security Incidents (as defined below) for which notice to Covered Entity by Business Associate shall be required only upon request. “Unsuccessful Security Incidents” shall include, but not be limited to, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, so long as no such incident results in unauthorized access, use or disclosure of PHI. Business Associate’s notification to Covered Entity of a Breach shall include: (i) the identification of each individual whose Unsecured PHI has been, or is reasonably believed by Business Associate to have been, accessed, acquired or disclosed during the Breach; and (ii) any particulars regarding the Breach that Covered Entity would need to include in its notification, as such particulars are identified in 45 C.F.R. § 164.404.
3.5 Subcontractors. In accordance with 45 C.F.R. §§ 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Business Associate shall enter into a written agreement with any agent or subcontractor that creates, receives, maintains or transmits PHI on behalf of the Business Associate for services provided to Covered Entity, which provides that the agent agrees to the same restrictions, conditions and requirements that apply to the Business Associate with respect to such information
3.6 Access to PHI. Business Associate agrees to provide access to PHI in a Designated Record Set to the Covered Entity. If an Individual makes a request for access pursuant to 45 C.F.R. § 164.524 directly to Business Associate, or inquiries about his or her right to access, Business Associate shall forward it to Covered Entity. Any response to such request shall be the responsibility of Covered Entity.
3.7 Minimum Necessary Requirement. Business Associate agrees that when requesting, using or disclosing PHI in accordance with 45 C.F.R. § 502(b)(1) that such request, use or disclosure shall be to the minimum extent necessary, including the use of a “limited data set” as defined in 45 C.F.R. § 164.514(e)(2), to accomplish the intended purpose of such request, use or disclosure, as interpreted under related guidance issued by the Secretary from time to time.
3.8 Amendment of PHI. Business Associate agrees to make PHI contained in a Designated Record Set available to Covered Entity for amendment pursuant to 45 C.F.R. § 164.526. If an Individual makes a request for amendment pursuant to 45 C.F.R. § 164.526 directly to Business Associate, or inquiries about his or her right to access, Business Associate shall forward it to Covered Entity. Any response to such request shall be the responsibility of Covered Entity.
3.9 Accounting of Disclosures. Business Associate shall provide to Covered Entity information collected in accordance with Section 3.11 of this Agreement, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. If any Individual requests an accounting of disclosures of PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity. Any response to such request shall be the responsibility of Covered Entity.
3.10 Access to Policies and Records. Business Associate agrees to make its internal practices, books and records, including policies and procedures regarding PHI, relating to the use and disclosure of PHI and Breach of any Unsecured PHI received from Covered Entity, or created or received by the Business Associate on behalf of Covered Entity, available to the Secretary for the purpose of Covered Entity or the Secretary determining compliance with the HIPAA Rules.
3.11 Documentation of Disclosures. Business Associate shall document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. Business Associate shall document, at a minimum, the following information (“Disclosure Information”): (i) the date of the disclosure, (ii) the name and, if known, the address of the recipient of the PHI, (iii) a brief description of the PHI disclosed, (iv) the purpose of the disclosure that includes an explanation of the basis for such disclosure, and (v) any additional information required under the HITECH Act and any implementing regulations.
ARTICLE 4: PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE
4.1 General Uses and Disclosures. Business Associate agrees to receive, create, use or disclose PHI only as permitted by this Agreement, the HIPAA Rules, and only in connection with providing services to Covered Entity; provided that the use or disclosure would not violate the Privacy Rule if done by Covered Entity, except as set forth in this Article 4.
4.2 Business Associate may use or disclose PHI as Required By Law.
4.3 Except as otherwise provided in this Agreement, Business Associate may:
4.3.1 Use PHI for the proper management and administration of Business Associate, or to carry out its legal responsibilities.
4.3.2 Disclose PHI for the proper management and administration of Business Associate or to carry out legal responsibilities of Business Associate, provided that the disclosures are Required by Law, or Business Associate obtains prior written reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required by Law or for the purposes for which it was disclosed to the person, and the person notifies the Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached, in accordance with the breach notification requirements of this Agreement.
4.3.3 Use PHI to provide Data Aggregation Services to Covered Entity as permitted under the HIPAA Rules.
ARTICLE 5: OBLIGATIONS OF COVERED ENTITY
5.1 Covered Entity shall:
5.1.1 Notify Business Associate of any limitation(s) in its Notice of Privacy Practices in accordance with 45 C.F.R. 164.520, to the extent that such limitation may affect Business Associate’s use or disclosure of PHI.
5.1.2 Notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 C.F.R. § 164.522, to the extent that such changes may affect Business Associate’s use or disclosure of PHI.
5.1.3 Notify Business Associate of any changes in or revocation of permission by an individual to use or disclose his or her PHI, to the extent that such change or revocation may affect Business Associate’s permitted or required uses and disclosures of PHI.
5.2 Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy Rule or the Security Rule if done by Covered Entity, except as provided under Article 4 of this Agreement.
ARTICLE 6: TERM AND TERMINATION
6.1 Term. This Agreement shall be in effect as of the Effective Date and shall terminate on the earlier of the date that:
6.1.1 Either party terminates for cause as authorized under Section 6.2.
6.1.2 All PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity. If it is determined, to be infeasible to return or destroy PHI, protections are extended to such information in accordance with Section 6.3.
6.2 Termination for Cause. Upon Covered Entity’s knowledge of material breach by Business Associate, Covered Entity shall provide an opportunity for Business Associate to cure the breach or end the violation. If Business Associate does not cure the breach or end the violation within the timeframe specified by Covered Entity, or if a material term of this Agreement has been breached and a cure is not possible, Covered Entity may terminate this Agreement and the Underlying Agreement(s), if any, upon written notice to Business Associate.
6.3 Obligations of Business Associate Upon Termination. Upon termination of this Agreement for any reason, Business Associate, with respect to PHI received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
6.3.1 Retain only that PHI that is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities;
6.3.2 Return to Covered Entity or, if agreed to by Covered Entity in writing, destroy the remaining PHI that the Business Associate still maintains in any form;
6.3.3 Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to ePHI to prevent use or disclosure of the PHI, other than as provided for in this Section 6, for as long as Business Associate retains the PHI;
6.3.4 Limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI;
6.3.5 Return to Covered Entity or destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.
ARTICLE 7: MISCELLANEOUS
7.1 Amendment. The Parties agree to take such action as is necessary to amend this Agreement to comply with the requirements of the HIPAA Rules and any other applicable law.
7.2 Survival. The respective rights and obligations of Business Associate under Article 6 of this Agreement shall survive the termination of this Agreement.
7.3 Regulatory References. A reference in this Agreement to a section of the HIPAA Rules means the section as in effect or amended.
7.4 Interpretation. This Agreement shall be interpreted in the following manner:.
7.4.1 Any ambiguity shall be resolved in favor of a meaning that permits Covered Entity to comply with the HIPAA Rules.
7.4.2 Any inconsistency between the Agreement’s provisions and the HIPAA Rules, including all amendments, as interpreted by the Department of Health and Human Services, court or another regulatory agency with authority over the Parties, shall be interpreted according to the interpretation of the Department of Health and Human Services, the court or the regulatory agency.
7.4.3 Any provision of this Agreement that differs from those mandated by the HIPAA Rules, but is nonetheless permitted by the HIPAA Rules, shall be adhered to as stated in this Agreement.
7.5 Entire Agreement, Severability. This Agreement constitutes the entire agreement between the Parties related to the subject matter of this Agreement, except to the extent that the Underlying Agreement(s), if any, impose more stringent requirements related to the use and protection of PHI upon Business Associate. This Agreement supersedes all prior negotiations, discussions, representations or proposals, whether oral or written. This Agreement may not be modified unless done so in writing and signed by a duly authorized representative of both Parties. If any provision of this Agreement, or part thereof, is found to be invalid, the remaining provisions shall remain in effect.
7.6 Assignment. This Agreement will be binding on the successors and assigns of Covered Entity and Business Associate. However, this Agreement may not be assigned by Business Associate, in whole or in part, without the written consent of Covered Entity. Any attempted assignment in violation of this provision shall be null and void.
7.7 Multiple Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original.
7.8 Governing Law.
Except to the extent preempted by federal law, this Agreement shall be governed by and construed in accordance with the laws of the state in which the Covered Entity’s principal place of business is located.