1. Accepting the agreement
By clicking the "EXECUTE CONTRACT" button displayed as a part of the online registration process, you are indicating that you expressly accept the following terms and conditions in this legal agreement (the "Agreement") between you and any organization you represent (collectively, "you" or the "Customer") and Demandforce, Inc., a wholly owned subsidiary of Intuit Inc. ("Demandforce"), governing your use of Demandforce's online service and any related software you may install on your computer (the "Service"). If you are entering into this Agreement, you represent that you are authorized to accept the terms of this Agreement on behalf of yourself or the organization you represent. If you do not have such authority, or if you do not agree with the terms and conditions of this Agreement, you must not click on the "EXECUTE CONTRACT" button and must close the electronic contract, and you may not use the Service.
2. License grant & restrictions
Demandforce hereby grants you, during the Term of this Agreement, the non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Demandforce and its third party licensors or suppliers (collectively, the "Licensors").
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the content provided by or on behalf of Demandforce through the Service (the “Content”) in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You agree that Demandforce may publish, modify and amend any and all Content appearing within demandforce.com, demandforced3.com, local.intuit.com, and all other internet domains or content feeds owned, managed, or controlled by Demandforce, including Content consisting of promotions, advertisements and listings for non-competing local businesses, or products and services offered by Demandforce.
3. Ownership of intellectual property rights and Customer Data
You acknowledge and agree that, subject to the license grants contained in this Agreement, Demandforce, or its licensors, retains all right, title and interest, including all related intellectual property rights, in and to the Demandforce technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations (collectively, Feedback) or other information provided by you or any other party relating to the Service. You retain all right, title and interest to any and all patient or customer data, including consumer review data, captured by the Demandforce system ("Customer Data") or provided to Demandforce, subject to Demandforce's right to use such Customer Data to provide the Service to you. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Demandforce Service, Demandforce technology, Demandforce Content, or Demandforce intellectual property except for the limited licenses granted to you under this Agreement. Any and all software, algorithms, applications, source codes, structures, sequences, routines, sub-routines and related programming, engineering or technological matter developed or created by Demandforce or its licensors (and all copyrights, patents, trademarks and other proprietary rights related thereto) shall remain the sole, exclusive and perpetual property of Demandforce or its licensors. Demandforce works with third parties to offer its customers additional products and services from time to time. Demandforce collects anonymized, aggregate data in order to provide such additional product and services to you and you agree to permit us to use such anonymized, aggregate data.
The trademarks, trade names, service names or logos associated with the Service (collectively, the "Marks") are trademarks of Demandforce or its licensors, and no right or license is granted to use them. You hereby acknowledge Demandforce or its licensors' perpetual and exclusive ownership of and title to the Marks and the goodwill attaching thereto. You agree not to use or attempt to register any Mark that is confusingly or deceptively similar to the Marks.
4. Customer responsibility and passwords; Third-party software
You are solely responsible for any and all activity occurring under your user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. You agree to notify Demandforce immediately of any unauthorized use of your account or any breach of security. Demandforce will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You warrant and represent that: (i) the content to be transmitted by or on your behalf does not constitute SPAM; (ii) the content to be transmitted by or on your behalf is not illegal, threatening, hateful, vulgar, obscene, libelous or defamatory and does not and will not infringe upon any trademark, patent, copyright, trade secret or other proprietary, publicity or privacy right of any third party; and (iii) you have complied and will comply with all applicable laws and regulations respecting your execution and performance of this Agreement.
The Demandforce Service receives data from third-party software systems, which you will designate in the process of setting up the Demandforce Service. If you elect to change, upgrade or materially alter the third party software system from which Demandforce receives data, Demandforce does not guarantee that all Customer Data or Service functionality will be preserved. You are responsible for communicating any changes in data structure, management system, or hardware upgrades that may impact Demandforce's ability to receive and process Customer Data. In addition, you are responsible for providing Demandforce with accurate instructions and information regarding the third party systems and databases with which the Service will interface, and you bear all responsibility for incomplete, inaccurate or otherwise faulty information regarding third party systems and databases belonging to you as conveyed to Demandforce in connection with set up or maintenance of the Service.
5. Client data and account information
Demandforce does not own any Customer Data, information or material that you submit to the Service in the course of using the Service. Except in accordance with this Agreement or as required by law, Customer Data in identifiable form will not be disclosed, sold, assigned, licensed or otherwise disposed of by Demandforce to any third party. You, not Demandforce, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and, except as provided in this Agreement or as required by law, Demandforce shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for the improper or erroneous upload or extraction of any Customer Data. Demandforce reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment as specified in this Agreement. Upon termination for cause, your right to access or use Customer Data immediately ceases, and, except as set forth in the Section titled “Listing services; Intuit Local”, below, Demandforce shall have no obligation to maintain or forward any Customer Data.
6. Limited liability
IN NO EVENT SHALL DEMANDFORCE, ITS PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS OR AFFILIATES BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (II) ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, EVEN IF DEMANDFORCE HAS BEEN ADVISED OR WARNED BY YOU OF THE POSSIBILITY OF SUCH DAMAGES; (III) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (IV) LOSS OF DATA OR OTHER OF YOUR CONTENT RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS RESPECTING THE SERVICE OR THE OPERATION OF DEMANDFORCE OR ITS LICENSORS' NETWORKS; OR (V) LOSSES OR LIABILITIES DUE IN WHOLE OR IN PART TO INADVERTENT, PREMATURE OR UNAUTHORIZED RELEASE OR DISCLOSURE OF INFORMATION BY YOU VIA DEMANDFORCE OR ITS LICENSORS' NETWORKS. THE TOTAL CUMULATIVE LIABILITY OF DEMANDFORCE TOGETHER WITH ITS PARENT, SUBSIDIARIES, OFFICES, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS AND AFFILIATES TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE IS LIMITED TO THE AMOUNT OF FEES YOU PAY TO DEMANDFORCE IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF DEMANDFORCE HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO ACTION OR CLAIM RELATING TO THIS AGREEMENT SHALL BE MADE AGAINST DEMANDFORCE OR ITS PARENT, LICENSORS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR AFFILIATES BY YOU OR ON YOUR BEHALF MORE THAN TWELVE (12) MONTHS AFTER THE EVENT GIVING RISE TO SUCH ACTION OR CLAIM.
You agree to indemnify and hold Demandforce (including its parent, subsidiaries, affiliates, officers, directors, agents, and employees, contractors, sub-contractors, licensors, and partners) harmless from any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of your breach or alleged breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party (including without limitation any negligent, willful, tortious or illegal conduct by you affecting a third party).
Unless otherwise agreed by Demandforce, this Agreement will be in force for a term of twelve (12) months (“Term”) beginning on the Subscription Start Date, and will AUTOMATICALLY RENEW each year for twelve (12)-month periods on the anniversary of the Subscription Start Date, or as mutually agreed in the Service Agreement (“Renewal Date”), which is incorporated herein by reference. If you choose not to renew, you must notify Demandforce in writing at least thirty (30) days prior to the Renewal Date, in which case, you will continue to have access to the Demandforce Service and you will be billed until the end of the then current Term.
10. Billing & pricing
Demandforce charges and collects in advance for use of the Service. No refunds will be available for fees you have paid unless you were billed in error. Demandforce will automatically renew and bill your credit card or issue an invoice to you (a) every month for monthly licenses and fees, (b) every quarter for quarterly licenses and fees, (c) each year on the subsequent anniversary for annual licenses, or (d) in an otherwise mutually agreed upon manner. The renewal charge will be equal to the then-current license fee in effect at the time of renewal. The pricing during any automatic Renewal Term will renew at the then current rate and Demandforce will give you notice of a pricing increase at least thirty (30) days before the end of that prior Term, in which case the pricing increase will be effective upon Renewal and thereafter in the new Term. Fees for other services will be charged on an as-quoted basis, including but not limited to:
10.1 Email Finder product.
Demandforce works with a third-party provider to gather email addresses for individuals in your customer database for which you do not currently have email addresses on file. By opting in to use Demandforce's email finder product you will be subject to the monthly service fee once email finder begins for that calendar month; email finder begins once Demandforce has passed your data to the Demandforce third-party provider. The fees are based on per-valid email returned each month from the provider.
10.2 Postcard product.
By opting in to use Demandforce's postcard product, you will be subject to the service fees charged per printed postcard. You assume full responsibility that any custom content you submit is correct, and in the event that you submit incorrect information, misspellings, grammatical errors, etc., you agree to pay any and all associated correction fees.
10.3 Listing service.
The Listing Service (defined below) is provided free of charge. Demandforce reserves the right to terminate the Listing Service as to you or any other customer at any time for any reason or no reason.
10.4 Demandforce Connect for Facebook.
Demandforce Connect for Facebook is an add-on service subject to a separate monthly subscription fee, as well as certain installation fees, as quoted on our website, and which are subject to change from time to time. Demandforce Connect for Facebook services require a valid Demandforce subscription to be in place. By electing to subscribe to Demandforce Connect for Facebook, you agree to pay all monthly subscription fees through the remainder of the Term of your Demandforce Agreement, billed in accordance with our normal monthly billing procedures. Your subscription to Demandforce Connect for Facebook will automatically renew at the then current rate, along with any renewal of your Demandforce subscription, unless you provide us with written notice of cancellation not less than thirty (30) days prior to the end of the then-current Term. Demandforce bears no responsibility for, and makes no warranty as to, the content published on your Facebook pages, or any other matter related to your use, or that of others, of Facebook, its applications, features and functions.
Unless otherwise stated, the Demandforce fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, plus interest, penalty and additions thereon (collectively, "Taxes"). You are responsible for paying all Taxes applicable to your purchase or use of Demandforce products or services. If Demandforce has the legal obligation to pay or collect Taxes (or an amount in respect of Taxes) for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide Demandforce with a valid tax exemption certificate authorized by the appropriate taxing authority. Demandforce is responsible solely for taxes based on its income.
11. Demandforce guarantee; limitations
Subject to the provisions of this Section, Demandforce shall credit your account an amount equal to the monthly subscription fee paid by you for a given calendar month in the event that you do not receive at least Three Dollars ($3.00) in Program Value (defined below) for every One Dollar ($1.00) of monthly subscription fee paid by you in such month. Any such credit will apply to the next month (the month following the month for which a refund is requested). To qualify for such credit, you must (1) be an existing Demandforce customer in good standing, (2) have at least two hundred fifty (250) bona fide customers with valid email addresses entered into the Service, (3) be signed-up for Email Finder, (4) have executed a custom promotion or newsletter within the past forty-five (45) days, (5) have communications and other key product functionality enabled, and (6) complete and submit the Refund Request Form within fifteen (15) days of the end of the month for which a refund is requested. Program Value equals the sum of the following amounts for the month for which a refund is requested:
- $1,000 for each new customer or patient that is generated by the Service
- $500 for each lost customer or patient visit that is generated through the Service
- Total appointment revenue from a new or existing customer who was contacted via the Service and received service from you within a sixty (60)-day time period
- $30 for each customer satisfaction survey completed during such month
- $20 for each existing appointment that is re-confirmed by the customer or patient
- $50 for each referral made during such month whether the referral resulted in an appointment or not
- $30 for each public review completed during such month
12. Credit card authorization
By submitting your credit/debit card ("Bank Card") data to Demandforce, you authorize Demandforce in its complete discretion to submit a financial transaction(s) to your issuing bank for settlement. You agree that once Demandforce has approved or declined your transaction, Demandforce has fully performed under the terms of this Agreement. You agree to contact Demandforce in the event that you desire to cancel any recurring charge, prior to the next billing cycle. Should you fail to contact Demandforce, you agree to indemnify and hold Demandforce harmless from any losses or damages that you suffer as a result of a recurring charge. Demandforce may be contacted at: firstname.lastname@example.org or Demandforce, Inc., 22 4th Street, 12th Floor, San Francisco, CA 94103, (415) 904-8080. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact Demandforce prior to the next billing cycle. Upon proper notification, Demandforce, in its sole discretion may issue a credit to your Bank Card.
13. Representations & warranties
Each party represents and warrants that it has the power and authority to enter into this Agreement. Demandforce represents and warrants that it will provide the Service in a manner consistent with generally accepted industry standards. You represent and warrant that you have not falsely identified yourself or your corporate entity, or provided any false information to gain access to the Service, and that all Bank Card and other billing information that you have provided is correct. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE". EXCEPT AS EXPLICITLY SET FORTH ABOVE, DEMANDFORCE IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICE, CONTENT OR TECHNOLOGY, AND DEMANDFORCE AND ITS PARENT, LICENSORS, DISTRIBUTORS, PARTNERS AND AFFILIATES (COLLECTIVELY, THE “AFFILIATES”) DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICE, CONTENT AND TECHNOLOGY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, DEMANDFORCE, ITS PARENT, ANY THIRD PARTIES ACTING ON ITS BEHALF, AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY YOU DUE TO CAUSES BEYOND DEMANDFORCE'S OR ITS PARENT, ANY THIRD PARTIES ACTING ON ITS BEHALF, OR ITS AFFILIATES’ CONTROL.
14. Email compliance
Demandforce has worked to achieve email compliance. You agree to comply with all elements of CAN-SPAM and safe sender email practices. This includes but is not limited to including unsubscribe links, your full contact information in all correspondence, and not releasing private and/or confidential information. You may only use email services for those customers with whom you have an existing business relationship and which have indicated that they accept correspondence from you. You may not attempt to spoof sender domains, send spam or other offending email practices including those covered in the Section titled “Customer responsibility and passwords; third-party software” of this Agreement. Because of carrier technologies, Demandforce makes no expressed or implied warranty of individual message receipt. Demandforce is not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.
15. Text message compliance
Demandforce automates text message communications, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them. The prior express written consent must identify that you may be sending text messages related to your goods and services using automated technology and that your customer affirmatively agrees to receive such messages. The prior express consent must include your customers’ written or electronic acceptance. Specifically, by entering a cell phone number into your management system or the Demandforce system and not opting such cell phone out of the Demandforce text message feature, you are directing Demandforce to automatically send text message reminders and other communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages. You are responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature. Additionally, you may not attempt to spoof sender domains, send spam or other offending text message practices including those covered in the Section titled “Customer responsibility and passwords; third-party software” of this Agreement. Demandforce makes no expressed or implied warranty of individual message receipt. Standard text message rates apply for all text message services. Demandforce shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You shall be solely liable to comply with applicable laws and regulations within your jurisdiction in connection with telecommunication (e.g., email and text) messages that you send to your customers.
For Canada-based businesses subject to commercial electronic message requirements:
Demandforce has worked to achieve carrier certification for text message Commercial Electronic Messages (“CEMs”) and upholds all CASL, Canada’s anti-spam law, requirements of CEMs under its control. To maintain this certification you must comply with CASL requirements including, but not limited to, providing identification, making available an “unsubscribe (opt-out) mechanism”, and obtaining consent from the message recipient. You are responsible for applying all consent, identification, and opt-out requirements. For text messages, you agree to adopt the double opt-in process wherein 1) you may only use text message services for those customers with whom you have an existing business relationship and which have indicated that they accept correspondence from you and 2) the customers must reply to an opt-in message from their handset. For reliable delivery, you must adhere to message limitations including length and delivery, including that portion of the message which indicates who is sending the message, along with a mailing address, plus either a contact phone number, email address or contact page URL. You may not attempt to spoof sender domains, send spam or other offending text message practices including those covered in the Section titled “Customer responsibility and passwords; third-party software” of this Agreement. Because of carrier technologies, Demandforce makes no expressed or implied warranty of individual message receipt. Standard text message rates apply for all text message services. Demandforce uses “short code” technology to engage in 2-way sms communication with consumers and does not guarantee delivery to all mobile carriers if short code technology is not accepted. Demandforce shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You agree to make your internal practices, books, and records, including policies and procedures and information, relating to this Agreement, available to Demandforce for the purposes of Demandforce determining your compliance with the obligation to secure consent for your customers to receive marketing messages and other communications (email, text, or other). Such information shall be made available in a time and manner reasonably requested by Demandforce.
16. Listing services; Intuit Local
Demandforce may offer a complimentary listing service (the "Listing Service") under which your business information and customer reviews (collectively, the "Business Information") are submitted to search engines, indexes and web sites, as well as to the Demandforce service referred to as "Intuit Local." You agree to participate in the Listing Service, and allow Demandforce to make this data available and provide registration services to Intuit Local and third party sites. It is up to third party sites to accept the submissions, and Demandforce makes no warranty as to such sites' willingness to do so. For so long as you continue to subscribe to the Service, Demandforce will make a good faith attempt to ensure accuracy and confidentiality of the information we provide to third party sites under the Listing Service. We have no control of third party web sites or resources that are provided by companies or persons other than that of Demandforce. Additional tools may be available from the third parties to provide additional updates to your information, but if you use such services, Demandforce is not liable for any claim arising out of the combination of such services with the information provided by the Listing Service. If you no longer have an active subscription, Demandforce may remove you from the listing. In addition to the terms set forth in this Agreement, you agree to abide by the terms set forth in our Public Review Policy, as the same may be amended from time to time by Demandforce, the terms of which are available at www.demandforce.com. Demandforce may terminate your participation in the Listing Service, or this Agreement, at any time in the event that Demandforce determines that you are not in compliance with the Public Review Policy. Upon termination of this Agreement by either party, the Business Information and any consumer reviews may remain in any data feeds provided to third parties under the Listing Service but is subject to removal at any time as determined by Demandforce. You may request explicit removal of the Business Information from such data feeds in writing. Upon request, at any time during your active subscription to the Service and up to the date of any termination of this Agreement, Demandforce will provide you with an electronic copy of your Business Information, including consumer reviews.
17. Governing law; venue; waiver of class action
a. Governing law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles to the contrary.
b. Venue. You will not commence or prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement other than in the state or federal courts located in San Francisco, California. You irrevocably consent to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of this Agreement.
c. Dispute and waiver of class action. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE DEMANDFORCE SERVICE OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply California law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND DEMANDFORCE ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
To begin an arbitration proceeding, send a letter requesting arbitration and describing your claim to Demandforce, Inc., in care of our registered agent Corporation Service Company, 2711 Centerville Road, Wilmington, DE 19808. Arbitration will be conducted by the American Arbitration Association (AAA) before a single AAA arbitrator under the AAA’s rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees and costs will be governed by the AAA's rules, but if you are unable to pay any of them, Demandforce will pay them for you. In addition, Demandforce will reimburse all such fees and costs for claims totaling less than $75,000 unless the arbitrator determines the claims are frivolous. Likewise, Demandforce will not seek its attorneys’ fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. This Section shall survive expiration, termination or rescission of this Agreement.
a. If any provision of this Agreement is found to be invalid or unenforceable, then the remainder of this Agreement will have full force and effect, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the original objective.
b. This Agreement will bind and inure to the transferee of a party’s business, and will be enforceable in the event of a change in ownership or control.
c. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges and supersedes all prior agreements, understandings, negotiations, and discussions. Neither of the parties will be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein.
d. Failure by either party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties.
e. Demandforce reserves the right to modify the terms of this Agreement from time to time, at its sole discretion; and your continued use of the Demandforce Service or products constitutes your acceptance of such modified terms.
f. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
g. This Agreement is not intended to confer any right or benefit on any third party, and no action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement. No oral explanation or oral information by either party hereto will alter the meaning or interpretation of this Agreement.
h. With respect to any acquisition or use of the Service by or for any unit or agency of the United States Government (the “Government”), the Service shall be classified as “commercial computer software” as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the “FAR”) and supplements thereto, including the Department of Defense (DoD) FAR Supplement (the “DFARS”). The Service was developed entirely at private expense, and no part of the Service was first produced in the performance of a Government contract. If the Service is supplied for use by the DoD, the Service is delivered subject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252-227-7013 (c)(l)(ii)(OCT 1988), as applicable. If the Service is supplied for use by a Federal agency other than the DoD, the Service is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable. The manufacturer/Service provider is Demandforce, Inc., 22 4th Street, 12th Floor, San Francisco, California 94103.
i. You acknowledge that the Service is subject to the U.S. Export Administration Regulations (15 CFR, Chapter VII) and that you will comply with these regulations. You will not export or re-export this Service, directly or indirectly, to: (1) any countries that are subject to U.S. export restrictions; (2) any end user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government; or (3) any end user who you know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons. You further acknowledge that this Service may include technical data subject to export and re-export restrictions imposed by U.S. law.
j. Foreign Corrupt Practices Act. You agree to fully comply with the provisions of the United States Foreign Corrupt Practices Act (“FCPA”) and/or the Organization for Economic Cooperation and Development (“OECD”) prohibiting foreign bribery and improper payments. Without limiting the generality of the foregoing, you represent and warrant that you have not and shall not at any time during the Term of the Agreement pay, give, or offer or promise to pay or give, any money or any other thing of value, directly or indirectly, to or for the benefit of: (i) any government official, political party, or candidate for political office; or (ii) any other person, firm, corporation or other entity, with knowledge that some or all of that money or other thing of value will be paid, given, offered or promised to a government official, political party or candidate for political office, for the purpose of obtaining or retaining any business, or to obtain any other unfair advantage, in connection with Demandforce’s business. Further, you agree to maintain complete and accurate books and records for compliance with this sub-section titled “Foreign Corrupt Practices Act” in the event Demandforce has reason to suspect or is placed on notice that you are in violation of this sub-section, or as required by law.
Section 19, following, applies only if you are subject to the HIPAA Security and Privacy Rule.
19. Business Associate Agreement (“BAA”)
19.1 Status of the parties.
WHEREAS, the American Recovery and Reinvestment Act (“ARRA“) of 2009 (Pub. L. 111-5), pursuant to Title XIII of Division A and Title IV of Division B, called the “Health Information Technology for Economic and Clinical Health” (“HITECH”) Act, provides modifications to the HIPAA Security and Privacy Rule (hereinafter, all references to the “HIPAA Security and Privacy Rule” are deemed to include all amendments to such rule contained in the HITECH Act, and the HIPAA Final Omnibus Rule of 2013, and any accompanying regulations, and any other subsequently adopted amendments or regulations), and the parties hereby acknowledge and agree that, if subject to the HIPAA Security and Privacy Rule, you are a covered entity (“Covered Entity”) and that Demandforce is a business associate of Covered Entity under the HIPAA Privacy Regulations, the HIPAA Security Regulations and the HITECH Standards, defined below.
19.2 Privacy and confidentiality.
The parties acknowledge that in carrying out its obligations under the Agreement, Demandforce and its subcontractors, employees, affiliates, agents, or representatives may have reason to access, use, create, maintain or transmit PHI, as defined below, for or on behalf of Covered Entity. Certain PHI may be transmitted by or maintained in electronic media as Electronic PHI. Both parties agree to comply with any applicable federal or state law governing the privacy and security of the PHI and Electronic PHI including, without limitation, the HIPAA Privacy Regulations, HIPAA Security Regulations, and the HITECH Standards, each as defined below.
a. "Breach" shall mean the acquisition, access, use, or disclosure of Protected Health Information in a manner not permitted under 45 C.F.R. Part 164, Subpart E (the HIPAA Privacy Rule) which compromises the security or privacy of the Protected Health Information. "Breach" shall not include: (1) Any unintentional acquisition, access, or use of Protected Health Information by a workforce member or person acting under the authority of the Covered Entity or Demandforce, if such acquisition, access, or use was made in good faith and within the scope of authority and does not result in further use or disclosure in a manner not permitted under the HIPAA Privacy Rule; or (2) Any inadvertent disclosure by a person who is authorized to access Protected Health Information at the Covered Entity or Demandforce to another person authorized to access Protected Health Information at the Covered Entity or Demandforce, respectively, or organized health care arrangement in which the Covered Entity participates, and the information received as a result of such disclosure is not further used or disclosed in a manner not permitted under the HIPAA Privacy Rule; or (3) A disclosure of Protected Health Information where the Covered Entity or Demandforce has a good faith belief that an unauthorized person to whom the disclosure was made would not reasonably have been able to retain such information.
b. "Electronic Protected Health Information" or "Electronic PHI" means Protected Health Information that is transmitted by or maintained in electronic media as defined in the HIPAA Security Regulations.
c. "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191.
d. "HIPAA Privacy Regulations" means the regulations promulgated under HIPAA by the United States Department of Health and Human Services to protect the privacy of Protected Health Information, including, but not limited to, 45 C.F.R. Part 160 and 45 C.F.R. Part 164, Subpart A and Subpart E.
e. "HIPAA Security Regulations" means the regulations promulgated under HIPAA by the United States Department of Health and Human Services to protect the security of Electronic Protected Health Information, including, but not limited to, 45 C.F.R. Part 160 and 45 C.F.R. Part 164, Subpart A and Subpart C.
f. "HITECH Standards" means the privacy, security and security breach notification provisions applicable to a Business Associate under Subtitle D of the Health Information Technology for Economic and Clinical Health Act ("HITECH), which is Title XIII of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5), and any regulations promulgated thereunder.
g. "Individually Identifiable Health Information" means information that is a subset of health information, including demographic information collected from an individual, that is; (1) created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (a) that identifies the individual; or (b) with respect to which there is a reasonable basis to believe the information can be used to identify the individual.
h. "Protected Health Information" or "PHI" means Individually Identifiable Health Information transmitted or maintained in any form or medium that (i) is received by Demandforce from Covered Entity, (ii) Demandforce creates for its own purposes from Individually Identifiable Health Information that Demandforce received from Covered Entity, or (iii) is created, received, transmitted or maintained by Demandforce on behalf of Covered Entity. Protected Health Information excludes Individually Identifiable Health Information in education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. §1232g, records described at 20 U.S.C. §1232g(a)(4)(B)(iv), and employment records held by the Covered Entity in its role as employer.
i. "Security Incident" means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.
j. Any terms capitalized, but not otherwise defined, in this BAA shall have the same meaning as those terms have under HIPAA, the HIPAA Privacy Regulations, the HIPAA Security Regulations, and the HITECH Standards.
19.4 Confidentiality and Security Requirements.
a. Use or Disclosure. Demandforce agrees to not use or further disclose Protected Health Information other than as expressly permitted or required by this BAA or as required by law.
b. Safeguards. Demandforce agrees to use appropriate safeguards to prevent any use or disclosure of the Protected Health Information other than uses and disclosures expressly provided for by this BAA. Demandforce further agrees to use appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and availability of any Electronic Protected Health Information in accordance with the HIPAA Security Regulations.
c. Mitigation. Demandforce agrees to mitigate, to the extent practicable, any harmful effect that is known to Demandforce of a use or disclosure of Protected Health Information by Demandforce in violation of the requirements of this BAA.
d. Reporting. Demandforce agrees to report to Covered Entity any suspected or actual Security Breach, or use or disclosure of Protected Health Information in violation of this BAA by Demandforce or by a third party to which Demandforce disclosed Protected Health Information (“Subcontractors and Agents”), pursuant to the sub-section titled “Subcontractors and Agents” of this BAA, of which it becomes aware, promptly and in a reasonable manner. Upon written request, Demandforce further agrees to provide a report to Covered Entity of any Security Incident of which it becomes aware.
e. Subcontractors and Agents. Demandforce agrees to ensure that any agent, including a subcontractor, to whom it provides Protected Health Information received from, or created or received by Demandforce on behalf of, Covered Entity, agrees to restrictions consistent with this BAA.
f. Access. Upon receipt of a written request by Covered Entity for access to Protected Health Information about an individual contained in a Designated Record Set, Demandforce shall make available to Covered Entity such Protected Health Information, promptly and in a reasonable manner, for so long as such information is maintained in the Designated Record Set. In the event any individual requests access to Protected Health Information directly from Demandforce, Demandforce shall forward such request to Covered Entity promptly and in a reasonable manner. Any denials of access to the Protected Health Information requested shall be the responsibility of Covered Entity.
g. Amendment. Upon receipt of a written request by or on behalf of Covered Entity for the amendment of an individual's Protected Health Information or record contained in a Designated Record Set, for so long as the Protected Health Information is maintained in the Designated Record Set, Demandforce shall provide such information to Covered Entity for amendment and incorporate any such amendments in the Protected Health Information as required by 45 C.F.R. §164.526, promptly and in a reasonable manner.
h. Audit and Inspection. Demandforce agrees to make its internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information and the security of Electronic Protected Health Information, available to Covered Entity, or, at the request of Covered Entity, to the Secretary of Health and Human Services (the "Secretary of HHS") or any officer or employee of HHS to whom the Secretary of HHS has delegated such authority for the purposes of the Secretary of HHS determining Covered Entity's compliance with the HIPAA Privacy Regulations and the HIPAA Security Regulations. Such information shall be made available promptly and in a reasonable manner.
i. Documentation of Disclosures. Demandforce agrees to document such disclosures of Protected Health Information, and such 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 Protected Health Information in accordance with 45 C.F.R. §164.528.
j. Accounting. Upon receipt of written notice by or on behalf of Covered Entity to Demandforce that Covered Entity has received a request for an accounting of disclosures of Protected Health Information, Demandforce shall make available to Covered Entity, promptly and in a reasonable manner, that information collected in accordance with the sub-section titled “Documentation of Disclosures” of this BAA, to permit Covered Entity to respond to the request in accordance with 45 C.F.R. §164.528.
k. Compliance with the HITECH Standards. Notwithstanding any other provision in the Agreement, Demandforce shall comply with the HITECH Standards, as applicable to its activities and services.
19.5 Permitted uses and disclosures by Demandforce.
a. General Use and Disclosure Provisions. Except as otherwise limited in this BAA, Demandforce may use or disclose Protected Health Information in connection with its performance of the services provided under the Agreement if such use or disclosure of Protected Health Information would not violate HIPAA or the HIPAA Privacy Regulations if done by Covered Entity or such use or disclosure is expressly permitted under the Section titled “Specific Use and Disclosure Provisions” of this BAA.
b. Specific Use and Disclosure Provisions. Except as otherwise limited in this BAA, Demandforce may use and disclose Protected Health Information for (i) the proper management and administration of Demandforce or to meet its legal responsibilities; provided, however, that such Protected Health Information may be disclosed for such purposes only if the disclosures are required by law or Demandforce obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies Demandforce of any instances of which it is aware in which the confidentiality of the information has been breached; or (ii) for data aggregation services, if to be provided by Demandforce for the health care operations of Covered Entity pursuant to any agreements between the parties evidencing their business relationship, or as mutually agreed in writing by both parties. For purposes of this BAA, data aggregation services means the combining of Protected Health Information received by Demandforce under this Agreement with the protected health information received by Demandforce in its capacity as a business associate of another covered entity, to permit data analyses that relate to the health care operations of the respective covered entities.
19.6 Obligations of covered entity.
Covered Entity shall not request Demandforce to use or disclose Protected Health Information in any manner that would not be permissible under the HIPAA Privacy Regulations if done by Covered Entity or that is not otherwise expressly permitted under the Section titled “Permitted Uses and Disclosures by Demandforce” of this BAA.
19.7 Term and termination of the BAA.
a. Term. This BAA shall be effective as of the date of the execution of the Agreement and shall continue until the Agreement expires or terminates or this BAA is sooner terminated in accordance with the provisions of the Section titled “Termination for Cause” or the Section titled “Amendment” of this BAA, whichever shall first occur.
b. Termination for Cause. Upon Covered Entity's knowledge of a material breach by Demandforce, Covered Entity may, in its sole discretion, either (1) provide Demandforce with notice of and an opportunity to cure such breach and then terminate this BAA if Demandforce does not cure the breach within the time period specified by Covered Entity, or (2) terminate this BAA immediately. In the event that termination of this BAA is not feasible, Demandforce acknowledges that Covered Entity has the right to report the breach to the Secretary of HHS. Upon Demandforce's knowledge of a material breach by Covered Entity of this BAA, Demandforce may, in its sole discretion, either (1) provide Covered Entity with notice of and an opportunity to cure such breach and then terminate this BAA if Covered Entity does not cure the breach within the time period specified by Demandforce, or (2) terminate this BAA immediately. In the event that termination of this BAA is not feasible, Covered Entity acknowledges and agrees that Demandforce has the right to report the breach to the Secretary of HHS.
c. Effect of termination. Subject to the following paragraph, upon termination of this BAA for any reason, and upon written request of Covered Entity, Demandforce shall return or destroy all Protected Health Information received from Covered Entity, or created or received by Demandforce on behalf of Covered Entity. Notwithstanding the foregoing, it may not be feasible for Demandforce to return or destroy all copies of the Protected Health Information. In such cases, where such return or destruction is not feasible, Demandforce shall extend the protections of this BAA to such Protected Health Information and limit further uses and disclosures of such Protected Health Information solely to those purposes as originally intended under this BAA, for so long as Demandforce maintains such Protected Health Information.
a. Regulatory References. A reference in this BAA to a section in HIPAA, the HIPAA Privacy Regulations or the HIPAA Security Regulations, or the HITECH Standards means the section as in effect or as amended from time to time, and for which compliance is required.
b. Amendment. Covered Entity and Demandforce agree that amendment of this BAA may be required to ensure that Covered Entity and Demandforce comply with changes in state and federal laws and regulations relating to the privacy, security and confidentiality of Protected Health Information, including, but not limited to, changes under the HIPAA Privacy Regulations, the HIPAA Security Regulations and the HITECH Standards. Demandforce agrees that Covered Entity may terminate this BAA upon thirty (30) days written notice in the event that Demandforce does not promptly enter into such amendment.
c. Survival. The respective rights and obligations of Demandforce under the Section titled “Effect of Termination”, in this BAA, shall survive the termination of this BAA.
d. Interpretation. Any ambiguity in this BAA shall be resolved in favor of a meaning that permits Covered Entity to comply with applicable law protecting the privacy, security and confidentiality of Protected Health Information, including, but not limited to, HIPAA, the HIPAA Privacy Regulations, the HIPAA Security Regulations and the HITECH Standards.
e. State Law. Nothing in this BAA shall be construed to require Demandforce to use or disclose Protected Health Information without a written authorization from an individual who is a subject of the Protected Health Information, or written authorization from any other person, where such authorization would be required under state law for such use or disclosure.
f. No Third Party Beneficiaries. Nothing expressed or implied in this BAA is intended or shall be deemed to confer upon any person other than Covered Entity, Demandforce, and their respective successors and assigns, any rights, obligations, remedies or liabilities.
g. Primacy. To the extent that any provisions of this BAA conflict with the provisions of any other agreement or understanding between the parties, including without limitation the Agreement, this BAA shall control with respect to the subject matter of this BAA.
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© 2014 Intuit Inc. All rights reserved. August 27, 2014