Third Party Terms
The Services provided by Practice Fusion, Inc. (“Practice Fusion”) contain the Updox Services (as defined below) provided by Updox, LLC (“Updox”). As a condition of your accessing the Updox Services, Updox requires that you agree to be bound by these additional terms (“Updox Terms”). These Updox Terms are cumulative with, and do not in any way limit, your obligations under your User Agreement; and, by accessing the Updox Services, you are thereby agreeing to these Updox Terms. Any terms or phrases not otherwise defined in these Updox Terms shall have the meaning given to them in your User Agreement.
License Grant & Restrictions
Updox hereby grants you a non-exclusive, non-transferable, worldwide right to use the Direct Secure Email service (the “Updox Service”), solely for your own internal business purposes, subject to the terms and conditions of these Updox Terms. All rights not expressly granted to you are reserved by Updox and its licensors.
You are responsible for all activity occurring under your email accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Updox Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Practice Fusion immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) not impersonate another Updox user or provide false identity information to gain access to or use the Updox Service.
Account Information and Data
You, not Updox, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data, information or material that you submit to the Updox Service in the course of using the Updox Service (“Customer Data”).
Intellectual Property Ownership
Updox alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Updox Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to the Updox Service. These Updox Terms are not a sale and does not convey to you any rights of ownership in or related to the Updox Service or the intellectual property rights owned by Updox or its licensors. The Updox name, the Updox logo, and the product names associated with the Updox Service are trademarks of Updox or third parties, and no right or license is granted to use them.
Termination for Cause
Any unauthorized use of the Updox Service will be deemed a material breach of these terms. Updox, in its sole discretion, may terminate your password, account or use of the Updox Service if you breach or otherwise fail to comply with these terms.
Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into these Updox Terms. Updox represents and warrants that it will provide the Updox Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Updox Service will perform substantially in accordance with the Updox documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Updox Service.
You shall indemnify and hold Updox, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you of these Updox Terms, provided in any such case that Updox (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Updox of all liability and such settlement does not affect Updox’ business or Updox Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Updox shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Updox Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Updox of its representations or warranties; or (iii) a claim arising from breach of these Updox Terms by Updox; provided that you (a) promptly give written notice of the claim to Updox; (b) give Updox sole control of the defense and settlement of the claim (provided that Updox may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Updox all available information and assistance; and (d) have not compromised or settled such claim. Updox shall have no indemnification obligation, and you shall indemnify Updox pursuant to these Updox Terms, for claims arising from any infringement arising from the combination of the Updox Service with any of your products, service, hardware or business process.
Disclaimer of Warranties
UPDOX AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE UPDOX SERVICE. UPDOX AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE UPDOX SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE UPDOX SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE UPDOX SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE UPDOX SERVICE OR THE SERVER(S) THAT MAKE THE UPDOX SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE UPDOX SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY UPDOX AND ITS LICENSORS.
THE UPDOX SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. UPDOX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
IN NO EVENT SHALL UPDOX’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS UPDOX SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE UPDOX SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE UPDOX SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
Modification to Terms
Updox reserves the right to modify the terms and conditions of these Updox Terms or its policies relating to the Updox Service at any time. You are responsible for regularly reviewing these Updox Terms. Continued use of the Updox Service after any such changes shall constitute your consent to such changes.
In the event of any conflict in terms between these Updox Terms, and any user license agreement established in writing between the parties, the conflicting terms in the written user license agreement shall prevail.
If any provision of these Updox Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Updox as a result of this agreement or use of the Updox Service. The failure of Updox to enforce any right or provision in these Updox Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Updox in writing. These Updox Terms comprise the entire agreement between you and Updox and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.