Terms of Use

These Terms of Use (“Terms of Use”) govern your use of pMDsoft, Inc.’s (“pMD”) website located at https://www.pmd.com (the “Website”), any related software or mobile device application made available by pMD (collectively, the “App(s)”), and any other related content, features, materials, applications, widgets and/or services (collectively the “Services”) offered by pMDsoft, Inc. (“pMD” or “we” or “us”).

For purposes of these Terms of Use, “you” and “your” means you as the user of the Services, whether you are using the Services as a patient, a provider of medical care, or a staff member of a medical practice. If you use the Services on behalf of a company, organization, physician network, medical practice, or other entity, then (a) “you” includes you and that entity, (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms of Use, and that you agree to these Terms of Use on the entity’s behalf, and (c) your entity is legally and financially responsible for your use of the Services as well as for the use of your account by others affiliated with your entity, including any employees, agents or contractors.

If you are using the Services on behalf of a health care provider or other entity that is a “covered entity” as defined by 45 CFR 160.103, the entity must also have accepted the terms of, and agreed to be bound by, the Business Associate Agreement (“BAA”) available at www.pmd.com/business-associate-agreement, which is incorporated by reference into these Terms of Use.

To the extent you (or the company, organization, physician network, medical practice or other entity on whose behalf you are using the Services) have been authorized to use certain portions of the Services pursuant to pMD’s master services agreement set forth at https://www.pmd.com/master-services-agreement or a similar agreement with pMD (an “MSA”), then in the event of a conflict between these Terms of Use and the MSA, the MSA shall supersede and control, but only as to the conflicting portions.

These Terms of Use describe your responsibilities, pMD’s liability and the liability of third parties related to the Services. All users of the Services must accept and comply with these Terms of Use. Certain portions of the Services may be subject to additional terms and conditions specified by us from time to time, all of which are hereby incorporated into these Terms of Use. Your use of the Services is subject to those additional terms and conditions.

The Services are intended for use only within the United States of America.

BY ACCESSING OR USING THE SERVICES, YOU ACCEPT ALL OF THE PROVISIONS OF THESE TERMS OF USE. YOU REPRESENT TO US THAT YOU ARE AT LEAST 18 YEARS OF AGE AND LEGALLY COMPETENT TO ENTER INTO AND AGREE TO THESE TERMS OF USE. IF YOU DO NOT ACCEPT THESE TERMS OF USE, THEN YOU ARE NOT AUTHORIZED TO USE ANY OF PMD’S SERVICES.

2.1.   Privacy Policy.

Our privacy practices in operating the Services are described in our Privacy Policy located at https://www.pmd.com/privacy (“Privacy Policy”) and, if applicable, the BAA. Please review the Privacy Policy and, if applicable, the BAA, to learn how pMD collects, uses, shares, processes, and protects information collected via your use of the Services. You agree that pMD may collect, use, share, and otherwise process Your Data as permitted in accordance with the Terms of Use, the Privacy Policy and, if applicable, the BAA.  You acknowledge and agree that telephone calls, email, and electronic correspondence with pMD may be recorded or monitored.

‍

2.2.   Your Data.

Subject to the rights and license granted to pMD in the Terms of Use, you (or the rightful owner of any of Your Data) retain all rights in Your Data.  “Your Data” includes all information (including patient-related data) recorded by any individual(s) and/or entities accessing the Services and User Account made available to you in connection with the Services, using the Service, or submitted or disclosed by you to pMD through use of the Service or otherwise.  This includes demographic information and any information regarding quality measures, improvement activities, and promoting interoperability clinical data. Your Data specifically excludes Feedback.

‍

2.3.   Accuracy of Your Data.

You are solely responsible for the content and accuracy of Your Data. You will bear all risks associated with the use of any information contained in, made available through, or accessible from the Service, including any reliance on the accuracy, completeness, or usefulness of Your Data.  pMD is not liable for Data submitted by you or any other user of the Service or any output related thereto including, but not limited to, any errors, omissions, or corruptions therein, or for any damage of any kind incurred as a result of Your Data.

‍

2.4.   Data Licenses.

You hereby grant pMD and its designees a sublicensable, royalty-free, irrevocable, non-exclusive license to use Your Data to allow pMD and its designees to provide the Service or otherwise perform its obligations and exercise its rights hereunder. You warrant that You have the lawful right and authority to disclose Your Data to pMD and to grant these license(s).  You consent that pMD may aggregate Your Data, as permitted by HIPAA, and that pMD may disclose anonymous statistics derived from Your Data to third parties. You further consent that pMD may de-identify Your Data, as permitted by HIPAA in accordance with the standards set forth at 45 CFR 164.514(a)-(b) and may use such de-identified data for legally permissible purposes.

‍

2.5.   Data Backup.

pMD will make backup copies of Your Data on a regular basis, as reasonably determined by pMD, but not less frequently than once per day.  In the event that the most current system data (including Your Data) cannot be recovered, pMD’s sole responsibility to you will be to use reasonable efforts to restore the system data from the most recent uncorrupted back-up available.

‍

2.6.   Return of Your Data.

Your Data is available to you for export during the term of any paid Service.  pMD will continue to make Your Data available for export for 30 days after you cancel a paid Service or termination of these Terms of Use. 30 days after such cancellation or termination, pMD shall have no obligation to retain Your Data or to forward any of Your Data to you or any third party.

3.1.   Registration.

To register an account on the Services, you must be at least eighteen (18) years of age or at least the age of majority in your jurisdiction. You do not need to create an account on the Services (a “User Account”) to visit the public pages of the Services, however, you do need a User Account to access the App(s) and certain other portions of the Service. Certain types of User Accounts may be created only by invitation from pMD or your healthcare provider. You are responsible for providing and maintaining current your accurate contact information.

‍

3.2.   Authorized Users.

You are the sole authorized user of your User Account. You are responsible for maintaining the confidentiality of any password and account identification provided by you or pMD for accessing the Services. You are solely and fully responsible for all activities that occur under your password or account. pMD has no control over the use of your or any user’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will cease all use and contact pMD immediately by emailing us at support@pmd.com.

4.1. License to Use Services.

Subject to your compliance with these Terms of Use, pMD hereby grants to you, a personal, nonexclusive, nontransferable, revocable, limited license (without the right to sublicense) to access and use the public portions of the Services and to access and use or download a single copy of the App(s) to which you are subscribed onto your own computer or mobile device for your use (including updates and upgrades that replace or supplement them in any respect and which are not distributed with a separate license, and any documentation) solely on computers and devices that you own or control, and subject to the limitations set forth below. We reserve any and all rights not expressly granted to you pursuant to these Terms of Use. The limited rights granted to you to access and use the Services comprise a limited license and do not constitute the sale of any software program.

‍

4.2. Use of the App(s).

You are responsible for providing the computer, mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to access, download, install and use the App(s) or the Services. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you outside or inside the App(s) (“Push Messages”). You acknowledge that, when you use the App(s) or the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App(s) or the Services, including your receipt of Push Messages from pMD. YOU ARE SOLELY RESPONSIBLE FOR ANY FEE, COST OR EXPENSE THAT YOU INCUR TO ACCESS, DOWNLOAD, INSTALL AND/OR USE THE APP(S) OR THE SERVICES, INCLUDING FOR YOUR RECEIPT OF PUSH MESSAGES FROM PMD.

‍

4.3. Mobile Software from the Apple App Store.

The following terms and conditions apply to you only if you are using the App(s) from the Apple App Store. To the extent the other terms and conditions of the Terms of Use are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to the App(s) from the Apple App Store. You acknowledge and agree that these Terms of Use are solely between you and pMD, not Apple, and that Apple has no responsibility for the App(s) or content thereof. Your use of the App(s) must comply with the App Store Terms of Use. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App(s). In the event of any failure of the App(s) to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App(s) to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App(s), and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and pMD acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App(s) or your possession and/or use of the App(s), including, but not limited to: (i) product liability claims, (ii) any claim that the App(s) fail to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation. You and pMD acknowledge that, in the event of any third party claim that the App(s) or your possession and use of the App(s) infringes that third party’s intellectual property rights, pMD, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms of Use. You must comply with applicable third-party terms of agreement when using the App(s). You and pMD acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use as they relate to your license of the App(s), and that, upon your acceptance of the Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary thereof.

‍

4.4. Use Requirements and Restrictions.

(a) You agree that you will only use the Services in accordance with applicable law and you will not: (i) use the Services if you are not fully able and legally competent to agree to these Terms of Use, (ii) use the Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct, (iii) try to harm the Services in any way whatsoever, (iv) copy, or distribute the Services or other content without written permission from pMD, (v) harvest, crawl or scrape any content or data from the Services, (vi) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any part of the Services (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services), or (vii) authorize any third party to engage in any of the acts described in clauses (i) through (vi).

(b) You acknowledge that people participating in the Services occasionally post content or material, or make statements, whether intentionally or unintentionally, that are inaccurate, misleading, illegal or deceptive. We neither endorse nor are responsible for such submissions or statements, or for any opinion, advice, information or other utterance made or displayed on the Services by any third person. The opinions expressed in the Services reflect solely the opinion(s) of the participants of the Services and do not necessarily reflect the opinion(s) of pMD. We have no obligation to monitor the Services or any submissions or other materials that you or other third persons or parties transmit or post on the Services. You acknowledge and agree that we have the right (but not the obligation) to do any or all of the following, at our sole discretion (i) alter, remove or refuse to post or allow to be posted or stored any user-submitted content, material or message, (ii) monitor and/or filter any of your communications through the Services (including without limitation, by means of blocking or replacing expletives or other language that may be deemed harmful or offensive), and (iii) disclose any submission or message or any communication through the Services, and the circumstances surrounding the transmission thereof, to any third party in order to operate the Services to (A) protect us and our employees, officers, directors, shareholders, agents, representatives, affiliates, users and visitors, (B) comply with legal obligations or governmental requests, (C) enforce these Terms of Use, or (D) for any other reason or purpose.

(c) You understand that by using the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that pMD shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.

(d) You agree to keep confidential all non-public information or protected health information about other users of the Services or patients that you may access while using the Services (“Protected Information”). You agree that you will not use or further disclose such Protected Information, except for the purpose for which it was disclosed to you. You will not use the Services to seek out additional Protected Information about others, unless you have a legitimate and legal purpose for doing so. You agree to notify pMD, within three business days, of any breaches of the confidentiality of Protected Information of which you become aware. Such notice must be sent to pMD via email at support@pmd.com.

(e) You agree to abide by all laws, regulations, rules, and standards of professional conduct applicable to the use or disclosure of Protected Information, other data or information of yours, and the Services, including, without limitation, HIPAA, CAN-SPAM, the Telephone Consumer Protection Act (“TCPA”), the federal anti-kickback statute and its implementing regulations, the federal self-referral prohibition (commonly referred to as the Stark Law) and its implementing regulations, and other federal and comparable state health care fraud and abuse laws and regulations, and laws regarding the authorized practice of medicine. As between pMD and you, you agree that you are the sender of emails and text messages to patients or other users and are obligated to follow all legal requirements applicable to the sending of emails and text messages under CAN-SPAM and TCPA, including but not limited to the prohibition against sending unsolicited emails and text messages to persons with whom you do not have a business relationship or who have not requested (opted-in) to your emails and/or text messages (i.e., "spam”), as applicable.

‍

4.5. Your Content License Grant.

As a condition of your use of the Services, you hereby grant to pMD a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicenseable license to access, use, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative work from any content that you post, upload, publish, submit or transmit to be made available through the Services (“Your Content”). “Your Content” does not include Your Data, which is separately addressed by these Terms of Use.  By posting or submitting Your Content through the Services, you represent and warrant (a) that you own or otherwise control all of the rights to Your Content, including without limitation, all copyrights, (b) that Your Content is accurate, and (c) that use of Your Content does not violate these Terms of Use or the Privacy Policy and will not cause injury to any person or entity. We take no responsibility and assume no liability for any content or materials submitted or posted through the Services by you or any third party. WE RESERVE THE RIGHT TO REMOVE ANY CONTENT, MATERIAL, OR SUBMISSION FOR ANY REASON, INCLUDING IF WE DETERMINE IN OUR SOLE DISCRETION VIOLATES ANY LAW OR RIGHT OF ANY PERSON, INFRINGES THE RIGHTS OF ANY PERSON, OR IS OTHERWISE INAPPROPRIATE FOR POSTING ON THE WEBSITE OR SERVICES.

‍

4.6. Third Party Services and Materials.

(a) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third-party websites.

(b) In order to use certain of the Services, you may need access to Third Party Materials such as the American Medical Association's CPT® data files.  Unless otherwise expressly provided, pMD does not provide a license or right to use such Third Party Materials and you will be responsible for obtaining any such licenses directly from the applicable third party.  Members of the American Medical Association are typically granted licenses to use CPT® data files as part of their membership, but pMD cannot guarantee this. Notwithstanding the foregoing, if you are using our pCharge™ charge capture product, you are granted a limited license to use CPT® data files in connection with that product subject to the terms and conditions of Appendix A attached at the end of these Terms of Use.  By using our pCharge™ charge capture product, you agree to be legally bound by and will comply with the terms set forth in Appendix A.

(c) pMD is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. pMD does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you. In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from the Services are not available in all languages or in all countries. pMD makes no representation that any third-party services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such services or Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.

‍

5.1. Subscriptions.

The Services may permit you to subscribe to certain paid products or services by submitting a paper or electronic order for such paid Service to pMD (each a “Product Order”). Set-up fees, subscription fees, and any other applicable fees will be described in the Product Order.  Depending on your state, some of the fees may be subject to sales, use, or other taxes, and you authorize us to charge and collect such fees from you.  You agree that (a) if you purchase a recurring subscription to any of the paid Services, we may store and continue billing your payment method to avoid interruption of such Services, and (b) we may calculate taxes payable by you based on the billing information that you provide us at the time of purchase.  We reserve the right, with or without prior notice and in our sole and complete discretion, to (a) discontinue, modify, or limit the availability of, any paid Services, and (b) refuse to allow any user to subscribe to or purchase any paid Services or provide such paid Services to a user.

‍

5.2. Payment.

All payments must be made by automatic clearing house (“ACH”) transfers or credit card.  When you subscribe to or purchase paid Services, you (a) agree to pay the price for such paid Services as set forth in the applicable Product Order and all applicable taxes in connection with your purchase (the “Full Purchase Amount”), and (b) authorize us to charge your credit card or payment account for the Full Purchase Amount.  Unless otherwise specifically stated in the Product Order, set-up fees are due at the time a Product Order is placed and all other fees are due no later than five (5) days after the end of each calendar month.  Subscription fees will be prorated for partial months.  All payments must be made in in U.S. Dollars.  All payments are non-refundable.  Failure to pay fees and taxes when due may result in suspension or termination of your access to the paid Services.  If any payment method is rejected or returned, pMD will charge you $15 and you authorize pMD to make a one-time credit card charge or electronic fund transfer from your account for each such charge incurred.  You represent and warrant that all payment information provided to us is accurate, current and complete and you have the legal right to use the payment method you provide to us or our payment processor.

‍

5.3. Changes and Pricing.

pMD may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any paid Services. While we attempt to be as accurate as we can in our descriptions for the paid Services, we do not warrant that Service descriptions are accurate, complete, reliable, current, or error-free. The inclusion of any paid Service for subscription or purchase through the Services at a particular time does not imply or warrant that the paid Services will be available at any other time. We reserve the right to change prices for paid Services at any time, including without limitation due to a change in the fees or costs for Third Party Materials, and to correct pricing errors that may inadvertently occur (and to cancel any orders in our sole discretion that were purchased with pricing errors). All such changes shall be effective immediately upon posting or other notice of such new prices or upon making you aware of any pricing error.  For any existing subscriptions, unless otherwise stated in the applicable notice, the new price will go into effect as of the first day of the month immediately following notice of the price change.

‍

5.4. Subscription Renewals and Cancellations.

Each subscription will automatically renew at the subscription period frequency referenced on your subscription page (or if not designated, then monthly) and at the then-current rates, and your payment method will automatically be charged at the start of each new subscription period for the fees and taxes applicable to that period.  You may cancel your subscription or any User Account by doing the following: log into pmd.com with an authorized Supervisor account, go to the "admin" section of the web application, and then to the "Users" sub-section, and disable all of your User Accounts. Subscription fees for the final month will be prorated for the number of days in the month elapsed as of the cancellation date.

‍

6.1. Disclaimer.

YOU ARE SOLELY AND FULLY RESPONSIBLE FOR YOUR USE OF THE SERVICES, INCLUDING INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PMD HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. PMD DOES NOT WARRANT THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, OR (D) DEFECTS IN THE SERVICES WILL BE CORRECTED. ANY ORAL OR WRITTEN ADVICE PROVIDED BY PMD OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PMD OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU

‍

6.2. Limitation of Liability.

TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL PMD BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OF USE, OR UNDER THE BAA, OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS OF USE AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF PMD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. PMD’S TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE GREATER OF THE AMOUNT YOU HAVE PAID TO USE THE SERVICES OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  You agree that the above limitations of liability together with the other provisions in these Terms of Use that limit liability are essential terms of these Terms of Use and that pMD would not be willing to grant you the rights set forth in these Terms of Use but for your agreement to the above limitations of liability. You are agreeing to these limitations of liability to induce pMD to grant you the rights set forth in these Terms of Use.

‍

6.3. Indemnification.

By entering into these Terms of Use and using the Services, you agree that you shall defend, indemnify and hold pMD, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, 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: (a) your violation or breach of any term of these Terms of Use or any applicable law or regulation, (b) your violation of any rights of any third party, (c) any unauthorized use of the Services, or (d) your negligence or willful misconduct.

7.1. IP Ownership.

The Services and their content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark, and other laws. You acknowledge and agree that pMD and/or its licensors own all right, title, and interest in and to the Services (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how, and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of pMD’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms of Use. You acknowledge and agree that the features and functionality of the Services, and all software, content, data, information, and materials contained therein are the confidential and proprietary information of pMD (or its licensors), and accordingly you agree to (a) maintain the confidentiality of such information using reasonable efforts and care (but in no event less than the same efforts and care you use to protect your own confidential and proprietary information) and not disclose such information to any third party without the prior written consent of pMD and (b) only use such information for the purposes of using the Services provided by pMD hereunder.

‍

7.2. Feedback; Revisions.

Any and all (a) suggestions for correction, change, and modification to the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to pMD by you (collectively “Feedback”) and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by pMD or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of pMD. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of pMD and pMD may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to pMD any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At pMD’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.

‍

The following terms apply only to the PQRS or MIPS Quality Data Registry Product and Services.

pMD has developed a Quality Data Registry product (the “Registry”) to collect quality measures, improvement activities, and promoting interoperability data and submit them to the Centers for Medicare and Medicaid Services (“CMS”) on behalf of users (such collection and submission service, the “Registry Services”).  This Section 8 only applies if you are purchasing a right to use such Registry Services under a specific Product Order. In the event of a conflict between this Section 8 and the rest of the Terms of Use, this Section 8 will control but solely with respect to your use of the Registry and Registry Services.

(a) Submission of Quality Data to pMD. You shall provide pMD with quality measures, improvement activities, and promoting interoperability clinical data for a specified time period (that data, the “Quality Data”). pMD agrees to accept your Quality Data unless the submitted Quality Data do not conform to pMD’s required formats, and subject to the review and audit rights explained in the Terms of Use.

(b) Reporting Mechanisms. You will be able to run reports to review the content of your Quality Data and determine your Quality Data’s overall compliance rate. These reports may change from time to time, as deemed necessary by pMD.

(c) pMD Will Perform Checks on Quality Data. As required by CMS, pMD will analyze your submitted Quality Data records to review accuracy and completeness.

(d) pMD Will Be Able To Audit Your Quality Data. CMS requires that a certified PQRS or MIPS registry have the right to audit any Quality Data submitted to the registry. As such, you agree that your Quality Data may be audited for accuracy and completeness by or on behalf of pMD. If pMD requests to audit your Quality Data, you agree to provide additional documentation to corroborate the accuracy of submitted Quality Data.

(e) What Will Happen If Problems Are Discovered During an Audit. You agree that if pMD’s audit determines that the Quality Data do not conform to the required standards, or that any other problem exists, you shall submit an action plan in a form acceptable to pMD, within forty-five (45) days of notice from pMD, as a condition of continued participation in the Registry. Determining whether problems exist shall be at the sole discretion of pMD, but pMD shall be reasonable in any such determinations. Any Quality Data found to be problematic shall be withheld from pMD’s database for national reporting purposes until such Quality Data is brought up to standard and re-submitted by you. pMD is not liable for any penalties or damages resulting from problems discovered during an audit, including any such delay or determination.

(f) pMD May Submit Audit Materials to CMS. pMD, in its sole discretion, may submit any of the materials resulting from the Audit to the Centers for Medicare and Medicaid Services (CMS), if needed to comply with pMD’s obligations as a CMS certified PQRS or MIPS registry.

(g) Technical PC System Requirements to Use pMD’s Quality Data Registry. To use the Registry, you must have a computer (PC or Mac) with internet access and a current up-to-date Web browser installed (e.g., Chrome, Internet Explorer 8 or higher, Firefox 3 or higher, or Safari 3 or higher).

(h) The Quality Data Registry Agreement Is Valid Only For One Reporting Period. The Terms of Use, as it relates to the Quality Data Registry Product Order, shall be effective as of the date on the Quality Data Registry Product Order, and is relevant only to the reporting period outlined in the Product Order(s).

(i) Data Retention. CMS requires that your Quality Data continue to be available to CMS for seven (7) years after submission to CMS. Therefore, pMD will retain your Quality Data for at least that period. After such period, pMD shall have no obligation to retain your Quality Data or to forward any of your Quality Data to you or any User or any other third party. If the Terms of Use continues after the seven (7) year period, then pMD will continue to retain your Quality Data, as outlined in the Terms of Use.

(j) pMD May Immediately Terminate the Registry Services If Your Quality Data Is Non-Compliant. pMD reserves the right to immediately terminate your participation in the Registry if it determines your Quality Data are non-compliant with the Registry standards or requirements. pMD may, in its sole discretion, provide you with the opportunity to cure the inadequate Quality Data without affecting pMD’s rights to terminate your participation in the Registry Services.

(k) Changes to CMS’ PQRS or MIPS Registry. If CMS makes any changes to its Quality Data Registry program, then the Terms of Use will be updated to allow both pMD and You to be in compliance with these program changes.

(l) Consent to Release of Your Email Addresses, Contact Information and NPIs.  CMS requires that each certified Quality Data Registry obtains permission from each of its participants to release the participant’s contact information to CMS. Therefore, you authorize pMD to release your staff and providers’ contact information, including but not limited to email addresses, to CMS, as needed. You represent that you are authorized to provide this release for each of your staff and providers.

(m) You Authorize pMD to Submit Quality Data to CMS for Each NPI Holder.  CMS requires that each certified Quality Data Registry obtains and keeps on file signed documentation from each holder of an NPI (National Provider Identifier) number that that NPI holder has authorized the qualified registry to submit Quality Data on their behalf to CMS for the purposes of PQRS or MIPS participation. You affirm that this Terms of Use represents this documentation for each NPI holder, such that pMD can rely on the Terms of Use to satisfy its obligations to CMS.

‍

9.1. Modifications.

We may modify these Terms of Use at any time. Modifications become effective immediately upon your first access to or use of the Services after the “Last modified” date at the top of these Terms of Use. We may also use reasonable efforts to attempt to notify you, including by email or placing a prominent notice on the Website. However, it is your sole responsibility to review the Terms of Use from time to time to view any such changes. Your continued access or use of the Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms of Use. If you do not agree with the modifications to the Terms of Use, then please do not access or use the Services.

‍

9.2. Termination.

If you breach any of the terms of these Terms of Use, all licenses granted by pMD, including permission to use the Services, will terminate automatically upon notice to you. Additionally, pMD may suspend, disable, terminate, or delete your User Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If pMD deletes your User Account for any suspected breach of these Terms of Use by you, you are prohibited from re-registering for the Services under a different name. In the event of User Account deletion for any reason, pMD may, but is not obligated to, delete any of Your Content. pMD shall not be responsible for the deletion of (or failure to delete) Your Content. All sections which by their nature should survive the termination of these Terms of Use shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by pMD or you. Termination will not limit any of pMD’s other rights or remedies at law or in equity.

‍

9.3. Export Laws.

You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by pMD hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.

‍

9.4. U.S. Government Restricted Rights.

The Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

‍

9.5. Injunctive Relief.

You agree that a breach of these Terms of Use will cause irreparable injury to pMD for which monetary damages would not be an adequate remedy and pMD shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

‍

9.6. Miscellaneous.

These Terms of Use will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms of Use and the licenses granted hereunder may be assigned by pMD but may not be assigned by you without the prior express written consent of pMD. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms of Use will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms of Use due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein will not be considered to be part of the Terms of Use but are for convenience only. You and pMD agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms of Use. The laws of the state of Georgia, excluding its conflicts of law rules, govern these Terms of Use and your use of the Services. Your use of the Services may also be subject to other local, state, national, or international laws.

‍

9.7. California Users.

Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

‍

9.8. Electronic Signatures and Communications.

Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.

‍

9.9. Contact Us.

You may contact us regarding the Services or these Terms of Use at 548 Market Street, #94509, San Francisco, CA 94104, or by email at support@pmd.com, or by phone at (800) 587-4989. These Terms of Use and the documents specifically referenced herein set forth the entire understanding of the parties with respect to the Services and there are no promises, covenants or undertakings other than those expressly set forth herein or in the referenced documents.

‍

Additional Terms re: American Medical Association's CPT® Data Files

Your use of CPT® data files (the “Licensed Content”) through pMD Charge Capture is also subject to the following terms:

(a)      Licensed Content is copyrighted by the American Medical Association (AMA) and CPT is a registered trademark of the AMA.

(b)      pMD, as a party to a license agreement with the AMA, is authorized to grant You a limited, non-exclusive, non-transferable, non-sublicensable license for You to use Licensed Content in pMD’s Charge Capture product (the “Licensed Product”), for the sole purpose of internal use by You within the Territory.  “Territory” is defined as the following: Algeria, Argentina, Australia, Bahamas, Bahrain, Belgium, Bermuda, Brazil, British Virgin Islands, Canada, Cayman Islands, Chile, China, Colombia, Costa Rica, Cyprus, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Germany, Guatemala, Hong Kong, India, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kenya, Republic of Korea (South Korea), Kuwait, Lebanon, Mexico, New Zealand, Nigeria, Norway, Pakistan, Panama, Peru, Philippines, Portugal, Qatar, Saudi Arabia, Singapore, South Africa, Spain, Sweden, Switzerland, Thailand, Tunisia, Turkey, United Arab Emirates, United Kingdom, and United States and its territories, and is subject to change.

(c)      Upon termination or expiration of the Agreement between pMD and AMA, pMD shall notify You. You shall continue to have the right to use Licensed Content in the pMD’s Licensed Product for the remainder of year of the then-current annual release (e.g., through the end of the applicable calendar year) (“End User Tail Period”). Your continued use of the Licensed Content during the End User Tail Period is subject to Your continued compliance with all its obligations under these terms. Upon the expiration of the End User Tail Period, the sublicense granted under these terms shall automatically terminate.

(d)      The provision of updated Licensed Content in the Licensed Product is dependent on a continuing contractual relationship between pMD and the AMA.

(e)      You are prohibited from making Licensed Content publicly available, creating derivative works (including translating), transferring, selling, leasing, licensing, or otherwise making available to any unauthorized party the Licensed Product, or a copy or portion of Licensed Content to any unauthorized party, including a subsidiary, affiliate, or other legal entity, however designated, for any purpose whatsoever except as expressly permitted in this Agreement.

(F)     YOU EXPRESSLY ACKNOWLEDGE AND AGREE TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE LICENSED CONTENT IS AT YOUR SOLE RISK AND THE LICENSED CONTENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. THE AMA DOES NOT DIRECTLY OR INDIRECTLY PRACTICE MEDICINE OR DISPENSE MEDICAL SERVICES.  FEE SCHEDULES, RELATIVE VALUE UNITS, CONVERSION FACTORS AND/OR RELATED COMPONENTS ARE NOT ASSIGNED BY THE AMA, ARE NOT PART OF CPT, AND THE AMA IS NOT RECOMMENDING THEIR USE. THE LICENSED CONTENT DOES NOT REPLACE THE AMA’S CURRENT PROCEDURAL TERMINOLOGY BOOK OR OTHER APPROPRIATE CODING AUTHORITY. THE CODING INFORMATION CONTAINED IN THE LICENSED CONTENT SHOULD BE USED ONLY AS A GUIDE.

(g)      You are required to keep records and submit reports including information necessary for the calculation of royalties payable to the AMA by the pMD, of the same type as required of pMD under this Agreement. You consent to the release of such information to the AMA. You further agree to provide, without delay, additional information that the AMA (as a third-party beneficiary) may reasonably request, to verify the information. Nothing herein shall require You to submit or release information that would cause You to be in violation of applicable federal or state privacy laws.  You expressly consent to the release of its name to the AMA.

(h)      U.S. Government End Users. CPT is commercial technical data, which was developed exclusively at private expense by the American Medical Association (AMA), 330 North Wabash Avenue, Chicago, Illinois 60611. This Agreement does not grant the Federal Government a direct license to use CPT based on FAR 52.227-14 (Data Rights - General) and DFARS 252.227-7015 (Technical Data - Commercial Items).

(i)       You must ensure that anyone with authorized access to the Licensed Product will comply with the provisions of this Agreement.

(j)       AMA is hereby made a third-party beneficiary of the Terms of Use.

‍

Last modified: October 03, 2023