These terms and conditions (this “Agreement”) will govern your (“Your” or “You”) use of https://www.thoroughcare.net/ (the “Website”) and any application(s), including updates, available on the Website (the “Application”) and also the terms of service that apply to any of the services accessible through any such Application (collectively, the “Services”). Please read this Agreement carefully before using https://www.thoroughcare.net/. As used herein, “We”, “Us”, and “Our” means ThoroughCare, Inc. As used herein, “Users” include both healthcare providers and/or healthcare facilities (“Healthcare Provider Users”) and their patients who are authorized to use Our Services (“Healthcare Provider Patient Users”) to communicate with such healthcare providers and healthcare facilities.
[By clicking “I Agree” (below), You are acknowledging and agreeing that You have read and agree to all of the terms and conditions herein.
BY ACCESSING AND/OR USING OUR WEBSITE OR APPLICATION OR SERVICES, YOU CONFIRM THAT YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT AND ACKNOWLEDGE THAT THEY CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN US AND YOU (AND, IF RELEVANT, ANY ORGANIZATION ON WHOSE BEHALF YOU ARE ACTING). IF YOU ARE ACTING ON BEHALF OF ANY ORGANIZATION, YOU CONFIRM THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND THAT ORGANISATION. IF YOU (OR, IF RELEVANT, YOUR ORGANIZATION) DO NOT AGREE TO ALL OF THESE TERMS (OR IF YOU DO NOT HAVE THE RIGHT TO BIND YOUR ORGANISATION), YOU ARE NOT PERMITTED TO ACCESS OR USE ANY APPLICATION OR SERVICE, AND YOU SHOULD NOT PROCEED FURTHER.]
We reserve the right to change the terms of this Agreement from time to time and We will do Our best to notify you (with the updated terms being displayed on-screen or with a link to the updated terms).
- Use of Services
2.1. Use by Healthcare Provider Users: Subject to payment of the applicable subscription, license and/or other fees (if any) and User’s full and ongoing compliance with the terms and conditions of this Agreement, We grant to Healthcare Provider Users a limited, revocable, non-exclusive, non-transferable, non-sublicensable authorization for such Healthcare Provider User’s authorized user(s) to access and use the Services within the scope of the Services as specified in the applicable agreement solely for their own medical practice operational use. To the extent that We make the Services available for direct integration with Healthcare Provider User’s web properties, We grant to such Healthcare Provider User a personal, limited, revocable, non-transferable, non-sublicensable right to such integration without modification into those web properties that are owned or controlled by such Healthcare Provider User solely for such purpose.
2.2. Use by Healthcare Provider Patient Users: Subject to User’s full and ongoing compliance with the terms and conditions of this Agreement, Healthcare Provider Patient Users that download an Application and/or register to use the Services patient interface features are granted a limited, revocable, non-exclusive, non-transferable, non-sublicensable authorization to access and use the Application and the patient interface features of the Services included in the Service subscribed for by the Healthcare Provider Patient User’s applicable Healthcare Provider User solely to communicate and interact with such Healthcare Provider User via the Services. Healthcare Provider Patient Users are not authorized to use any other aspects of the Services unless expressly agreed to otherwise by Us in writing.
2.3. Usage Limitations. The Services may be subject to other limitations in Your agreement with Us and/or other documentation and such limitations shall be deemed to be incorporated by reference into and made a part of this Agreement. User will abide by any such limitations and User will not attempt to exceed or circumvent such limitations. If User exceeds, or We reasonably believe that User has circumvented any limitations, then User’s ability to use the may be temporarily or permanently blocked or suspended and User may be subject to overage charges.
2.4 User Content Standards. To the extent a User posts content (including, without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features, works of authorship of any kind, and information or other materials that are posted, generated, provided, or otherwise made available through the Services) and information (referred to as “User Content” regardless of form), the following content standards apply to any and all User Content. User Content must in its entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Content must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
- Fees and Payment. Healthcare Provider Users shall pay the applicable fees and charges specified in the User’s agreement with Us as a condition to access and use of the Services in accordance with the payment terms set forth in the applicable agreement. Fees for any additional products or services not specified in the applicable agreement shall be invoiced by Us to the applicable User and are due and payable no later than thirty (30) days from the date of invoice. Any failure by User to timely pay applicable fees on or before the applicable due date shall constitute a material breach of this Agreement. Amounts not paid when due shall bear interest at the rate of one- and one-half percent (1.5%) per month or the maximum legal rate, whichever is less, until paid in full (together with any accrued interest). All fees are nonrefundable.
- Taxes. If any federal, state, local or foreign sales, use, property, value-added, excise or gross receipts taxes or any other taxes of any kind (other than Our income taxes) are imposed or are otherwise payable with respect to any access to or use of the Services or any license, software, hardware or other goods or implementation, support, maintenance or other services provided in this Agreement, then such taxes shall be billed to and paid by User.
- Third Party Services. The Services may contain features designed to interoperate with third party applications, products or services (such as cloud-based services, web platforms, storage, and analytical services (“Third Party Services”). To use such features, User may be required to obtain access to such Third-Party Services, or We may be required to obtain access to such Third Party Services on behalf of User, from the providers of such Third Party Services and User agrees to the terms and conditions on which such third party provider offers such Third Party Services. If User chooses to use such features and We are required to obtain access to Third Party Services on behalf of User, User authorizes Us to access the applicable Third Party Services on User’s behalf and obtain, access, store, and use the data made available to Us by the Third Party Services in accordance with this Agreement. User is solely responsible for compliance with the terms and conditions applicable to any Third Party Services accessed by or on behalf of User in connection with the Services and will indemnify Us from any and all harm, damages, costs, and expenses incurred by Us in connection with a breach of the foregoing. We shall not be responsible for any disclosure, modification or deletion of data resulting from any such access to such Third Party Services and their providers. If the provider of any such Third Party Service ceases to make the application available for interoperation with the corresponding feature of the on reasonable terms, We may cease providing such features without entitling User to any refund, credit, or other compensation. Any acquisition or use of Third Party Services and any exchange of information between an end user and any third party is directly between the end users and the applicable third party, and any interaction between User and end users is solely between User and the end user. THOROUGHCARE, INC. EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY END USER INTERACTIONS WITH THE SERVICES OR ANY THIRD PARTY SERVICES.
- Ownership and Proprietary Rights; Confidentiality; Non-Personally Identifiable Data.
6.1. Intellectual Property. ThoroughCare reserves all right, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to User other than as expressly set forth herein, whether by implication, estoppel, or otherwise. All enhancements, modifications, and derivative works made to the Services (collectively, the “Derivatives”), and all intellectual property rights therein, shall be owned by Us, whether or not such Derivatives are made at User’s request or instruction, with the exception of any electronic data or information submitted, provided, or made available to Us by or on behalf of User to the Services (“User Data”) contained in the Derivatives which shall continue to be owned by User. User hereby irrevocably assigns to Us all right, title and interest in and to the Derivatives, including all intellectual property rights therein that may inure to User or that User is deemed to obtain pursuant to this Agreement.
6.2. Restrictions. User shall not (i) modify or create derivate works based on the Services, (ii) reverse engineer the Services, or (iii) access the Services in order to (a) build a similar or competitive product or service to the Services or the Third Party Services, (b) carry out benchmarking of the Services, including by monitoring their availability, performance or functionality, or (c) copy any features, functions or graphics of the Services.
6.3. Confidentiality; Healthcare Law Compliance; Use of Non-Personally Identifiable Data. By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Users acknowledge and agree that the and their software, design, functionality and features constitute trade secrets within the Confidential Information owned by ThoroughCare, in addition to other business, proprietary and/or otherwise non-public information pertaining to ThoroughCare. User health/healthcare information and other non-public information that is stored on Our servers is considered to be User Confidential Information. A party’s Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act of omission of the other party; or (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; (d) is independently developed by the other party; or (e) is required to be disclosed by applicable laws or regulations or by an order of a court of competent jurisdiction or other legal process, provided that in the event of a compelled disclosure the party required to make such disclosure shall if reasonably practicable and permitted under applicable law, provide notice to the other party as early as practicable prior to such disclosure in order to enable the other party to contest and/or attempt to limit the extent of such disclosure. The parties agree, both during the term of this Agreement and for a period of two (2) years after termination of this Agreement, to hold each other’s Confidential Information in confidence, except that with respect to information constituting “trade secrets” as defined under the Uniform Trade Secrets Act the obligations hereunder shall continue for as long as such information continues to constitute trade secrets. The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the use or provision of the Services, as applicable, and the implementation of this Agreement. Each party agrees to take reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this Agreement.
Notwithstanding the foregoing, Users shall not, at any time whether while this Agreement is in effect or thereafter permit anyone (other than Healthcare Provider Users’ own employees and its Healthcare Provider Patient Users) to access or use the Services. Each party shall comply with all applicable laws, rules and regulations in performing its obligations hereunder, including, without limitation, applicable state and federal physician self-referral and anti-kickback laws and regulations, as well as the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), and the rules promulgated thereunder (including the Standards for Privacy of Individually Identifiable Health Information). Healthcare Provider Users and ThoroughCare agree to enter into a customary HIPAA Business Associate Agreement upon entering into this Agreement.
Notwithstanding any other provision in this Agreement, We own and have the right to gather, retrieve, compile, store, retain, use, sell, license, transfer or otherwise exploit all information that is not “Protected Health Information” as defined under 45 C.F.R. Section 164.501 or other “personally identifiable data” relating to use of the Services for research, quality control, product development and refinement, commercial and other purposes as determined by Us without a duty to account to or obtain consent from Users or any third party. As used herein, “non-personally identifiable data” is any data element or collection of data elements that cannot be associated with a specific individual, whether by itself or in combination with other information. We may use such information as may be reasonably necessary in connection with performing, providing, developing, enhancing, supporting, and maintaining the Services; and (ii) in connection with the creation of any information or data derived from use of the Services (including, without limitation, metrics and analytics related to such use), which is not specific to a person, does not include Protected Health Information or personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person, including as may be required to develop, deliver and provide ongoing innovation to the Services.
6.4. Suggestions. User may, but is not obligated to, provide suggestions, enhancement requests, recommendations or other feedback provided by User (“Suggestions“). User hereby grants ThoroughCare, Inc. a royalty-free, worldwide, irrevocable, sublicensable, transferable, perpetual license to use, disclose, reproduce, license, distribute and exploit such Suggestions, and incorporate Suggestions into the Services and its other services, products, technologies, documentation or other development with no obligation to pay, attribute, license or to make available to, User or any other person or entity.
6.5 Copyright Infringement. We respect the intellectual property rights of others. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides a complaint procedure for copyright owners who believe that website material infringes their rights under U.S. copyright law. If you believe that your work has been improperly copied and posted on the website, please provide us with the following information: (1) name, address, telephone number, email address and an electronic or physical signature of the copyright owner or of the person authorized to act on his/ her behalf; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of where on the Site the material that you claim is infringing is located; (4) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. These requirements must be followed to give Company legally sufficient notice of infringement. Send copyright infringement complaints to Dan Godla, at the following email address: firstname.lastname@example.org. We suggest that you consult your legal advisor before filing a DMCA notice with Company’s copyright agent. There can be penalties for false claims under the DMCA.
- Limited Warranty; Disclaimer; Indemnification.
7.1. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THOROUGHCARE, INC., ITS AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, MEMBERS, OWNERS, EMPLOYEES, AGENTS, CONTRACTORS AND OTHER REPRESENTATIVES (THE “THOROUGHCARE REPRESENTATIVES”) MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH OF THE THOROUGHCARE REPRESENTATIVES SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION: THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE; OR WITH RESPECT TO ANY USER DATA OR OTHER THIRD PARTY CONTENT THAT MAY BE ACCESSED, PROVIDED, OR MADE AVAILABLE; OR ANY THIRD PARTY SERVICES ACCESSED OR USED, IN CONNECTION WITH THE SERVICES; AND HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT THERETO. THOROUGHCARE, INC. WILL NOT BE LIABLE TO USER FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF THOROUGHCARE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT STRICT LIABILITY OR OTHERWISE.
7.2 User’s Indemnification of ThoroughCare. User shall indemnify, defend and hold the ThoroughCare Representatives harmless from and against any claims, losses, expenses (including, without limitation, legal expenses), damages or other liability (collectively, “Claims”) incurred or suffered by any of them with respect to any breach of any of User’s representations, warranties or obligations hereunder or any act or omission by User or any of its authorized users or other personnel that results in a Claim.
7.3. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY THOROUGHCARE PARTIES’ AGGREGATE TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT OR RELATING TO THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY RECEIVED BY US WITH RESPECT TO USER’S SUBSCRIPTION FOR THE SERVICES GIVING RISE TO THE APPLICABLE CLAIM DURING THE ONE (1) MONTH PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF USER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE THOROUGHCARE PARTIES HAVE ANY LIABILITY TO USER OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING AS A RESULT OF STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER OR NOT THE THOROUGHCARE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- GENERAL PROVISIONS.
THESE TERMS AND THE USE OF THE SERVICES AND WEBSITESITE WILL BE GOVERNED BY NORTH CAROLINA LAW NOTWITHSTANDING PRINCIPLES OF CONFLICTS OF LAW. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES OR WEBSITE MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF MECKLENBURG COUNTY, NORTH CAROLINA, AND BOTH PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION IN SUCH COURTS. This Agreement constitutes the entire and exclusive agreement between You and ThoroughCare, Inc. with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. This Agreement creates no third-party beneficiary rights. Our failure to enforce a provision is not a waiver of Our right to do so later. If a provision is found unenforceable the remaining provisions of this Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of Your rights in this Agreement, and any such attempt is void, but WE may assign Our rights to any of Our affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. ThoroughCare, Inc. and You are not legal partners or agents; instead, our relationship is that of independent contractors. If any provision of this Agreement is held or made invalid, the invalidity does not affect the remainder of the Agreement.
Last Updated: December 20, 2021