By requesting permission to access this web site and use the computer software and programs available on this web site, You agree to accept and be fully bound by these Terms and Conditions of Use and Account Agreement (hereinafter referred to as "this Agreement"). M.D. On-Line, Inc. (hereinafter referred to as "M.D.O-L") reserves the right to revise the this Agreement (hereinafter referred to as "these Terms") at any time, and by using this web site and/or the computer software and programs available on this web site You agree to accept and be fully bound by any such revisions when they become effective, whether or not You have actually reviewed them. If you do not agree to accept and be fully bound by these Terms, You should not use this web site or the computer software and programs available on this web site.
1. WEB SITE ACCESS. To use the computer software and programs available on this web site, You must establish an account with M.D.O-L. Your account is governed by this Agreement. Your account is established only once Your request for service has been received, accepted and processed by M.D.O-L. To access the web site, You must obtain access to the World Wide Web (hereinafter "the Web"), either directly or through other devices that allow you to access Web-based content, and pay any service fees associated with such access, directly to the party providing You with such access. You must provide all equipment, software and services necessary to connect to the Web, including without limitation a computer, modem or other access equipment, electricity, etc. Once you have accessed this web site, M.D.O-L shall give You its permission for a personal, non-exclusive, non-transferable, limited right to access, use and display this web site and the materials provided hereon but only for You to Use in accordance with this Agreement. In conjunction therewith, You are granted permission to view and/or download material on the web site for Your Use. When content is downloaded to Your computer (whether temporarily for viewing in a session or for record retention purposes), You do not obtain any ownership interest in such content, any modification of the content or any permission to use the content for purposes other than the Use permitted hereunder. Ownership of all such content shall remain with M.D.O-L or its licensors at all times and M.D.O-L reserves unto itself all rights not specifically granted to You hereunder.
A. WEB SITE SECURITY RULES. You are prohibited from violating or attempting to violate the security of this web site or any M.D.O-L server, database or network infrastructure. Such violations or attempted violations include, but are not limited to, (i) accessing data not intended for You, (ii) logging into an account You are not authorized to access, (iii) testing, "hacking", scanning or probing the web site to identify or detect any vulnerabilities, or (iv) attempting to interfere with other users Use of this web site or the software and programs available to other users on this web site.
B. THIRD PARTY LINKS. This website may contain third-party information and links to other sites on the Web. Wherever practical, such information is marked accordingly. M.D.O-L has no control over and takes no responsibility whatsoever for such third-party content, information or the materials contained on other sites on the Web. YOU ACKNOWLEDGE AND AGREE THAT M.D.O-L SHALL NOT BE RESPONSIBLE OR IN ANY WAY LIABLE FOR ANY DAMAGES OR LOSSES (WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE) CAUSED OR ALLEGEDLY CAUSED BY THE USE OF OR RELIANCE UPON THE CONTENT OF OR INFORMATION PROVIDED BY THIRD-PARTY WEB SITES.
2. SOFTWARE LICENSE GRANT. In granting You permission to access, use and display this web site, M.D.O-L gives You permission to the limited use of certain Software. However, this License lets You use the Software only for the purpose set forth below and only in accordance with these Terms. This License does not operate to confer upon or vest in You any right, title, or interest to either the Software or the use of that Software beyond the right to use the Software in accordance with this Agreement. You do not obtain title to or any ownership or proprietary rights to the Software by virtue of this Agreement. The Software is owned by M.D.O-L, which retains all right, title and interest therein. The Software is protected by copyrighted material owned exclusively by M.D.O-L and all rights, title and interest therein are retained by M.D.O-L.
A. SCOPE. This License confers upon You a revocable, nonexclusive and nontransferable right for You or Your employees, agents, representatives or those acting on Your behalf to access M.D.O.L.'s web software and any supporting documentation in accordance with these Terms. You may not assign or transfer this License or any of the rights, or obligations under this Agreement to any other person or entity, including any entity resulting from the reorganization of Your structure, without the prior written consent of M.D.O-L, which consent shall be in M.D.O-L's sole discretion. Any attempt to transfer or assign this License without M.D.O-L's prior written consent shall be null and void. M.D.O-L shall have the right to assign its rights hereunder.
B. PURPOSE FOR USE OF SOFTWARE. The software and the supporting documentation MAY ONLY BE USED FOR the sole purpose of electronically submitting requests for payments ("claims") and/or information related thereto through M.D.O-L. You may not use the Software, supporting documentation or any part thereof for any other purpose, including submitting claims or transmitting information to or through any other entity. You may not sell, transfer, sublicense, rent, lease, convey, copy, modify, translate, convert to another programming language, decompile, reverse engineer, disassemble or create derivative works of or from the Software for any purpose. The Software and supporting documentation is for Your use in conjunction with Your business and, only if done in conjunction with Your business, may be used by You on behalf of other persons or entities wishing to submit Claims through M.D.O-L. LICENSEE may not export the Software outside of the United States of America or make use of the Software at any location other than the geographic area(s) identified by LICENSEE as the LICENSEE'S office location when ordering this License or as such other location as M.D.O-L consents to such Use, which is the geographic area from which LICENSEE is licensed to use the Software. YOU MAY NOT USE THE SOFTWARE OR SUPPORTING DOCUMENATION IN ANY WAY WHICH VIOLATES ANY APPLICABLE LAW AND ANY SUCH USAGE IS OUTSIDE THE PERMITTED SCOPE OF THIS LICENSE AND SHALL BE DEEMED A DEFAULT HEREUNDER.
3. FEES. You hereby agree to pay M.D.O-L the Monthly Minimum Fee, any transaction fees and/or other fees or charges that may apply for services provided to You, plus all applicable taxes imposed or levied as a consequence of this Agreement or Your use of the Software or this web site. You shall be responsible for and agrees to pay all taxes, levies and imposts related to or arising out of this Agreement or Your use of the Software or this web site, except for taxes based upon M.D.O-L's income or corporate franchise taxes. ALL FEES, COSTS AND CHARGES SHALL BE SET FORTH ON THE THEN-APPLICABLE M.D.O-L PLAN RATE SCHEDULE. M.D.O-L may revise, change or update the M.D.O-L Plan Rate Schedule at any time of Agreement BY PROVIDING YOU WITH thirty (30) days prior Notice.
4. PAYMENT. You agree that all fees for which You are responsible for, including but not limited to sales and use taxes, will be debited from a bank account, charged to a credit card or paid by check. For bank debit or credit card payment, M.D.O-L is hereby authorized to debit Your bank account or charge Your credit card, as specified in Your signed and submitted authorization. Any fees for which M.D.O-L's payment request is denied or for which payment is not otherwise received within ten (10) days of such payment being due shall be subject to a late payment fee of one and one-half percent (1.5%) per month of the past due balance.
5. COPYRIGHT. In addition to being privileged, confidential and a trade secret, all the content of the web site, the design of the web site, the Software and supporting documentation is owned by M.D.O-L and is protected by United States copyright laws and international treaty provisions. You may not copy the written materials, images, trademarks, and/or logos set forth within or accompanying the Software without M.D.O-L's prior written authorization. You will not remove, change or deface any copyright notice or proprietary markings in or on any part of the Software.
YOU acknowledge that the CONTENT and DESIGN OF THE WEB SITE, THE Software and THE SUPPORTING documentation TO WHICH YOU ARE PERMITTED ACCESS OR ARE licensed hereunder contain trade secrets proprietary to M.D.O-L and the American Medical Association and that the loss of such trade secret status would cause irreparable damage to M.D.O-L for which monetary damages may not adequately compensate either M.D.O-L or the American Medical Association. YOU agree to take at least the same precautions to maintain the confidentiality of this information as YOU do with respect to YOUR own proprietary information, BUT IN NO CASE SHALL SUCH PRECAUTIONS BE LESS THAN THOSE considered objectively REASONABLE in light of the nature of such information.
6. LIMITED WARRANTY. ALL ACCESS TO THIS WEB SITE, CONTENT, DATA, CALCULATIONS, INFORMATION PROCESSED BY OR TRANSMITTED BY M.D.O-L, THE SOFTWARE AND THE SUPPORTING DOCUMENTATION ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THE RIGHTS OF OTHERS. THE ENTIRE RISK AS TO THE FITNESS, QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. M.D.O-L DOES NOT WARRANT THAT ACCESS TO THIS WEB SITE OR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
FURTHER, M.D.O-L SHALL HAVE NO LIABILITY FOR ANY CLAIM THAT THIS WEB SITE, THE SOFTWARE OR THE SUPPORTING DOCUMENTATION VIOLATES OR INFRINGES UPON THE RIGHTS OF ANY THIRD PARTY UNDER A TRADEMARK, COPYRIGHT OR PATENT OR ALLEGED TRADEMARK, COPY RIGHT OR PATENT IF SUCH CLAIM IS BASED UPON (A) THE COMBINATION, OPERATION OR USE OF THE SOFTWARE WITH SOFTWARE NOT SUPPLIED BY M.D.O-L, (B) ANY ALTERATION OR MODIFICATION OF THE SOFTWARE OR (C) M.D.O-L'S COMPLIANCE WITH ANY OF LICENSEE'S REQUESTS TO MODIFY OR REDESIGN THE SOFTWARE.
M.D.O-L SHALL NOT HAVE ANY LIABILITY FOR ANY KIND OF DAMAGES FOR LOST PROFITS, WHETHER DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL ARISING OUT OF ACCESS TO THIS WEB SITE, THE USE OR PERFORMANCE OF THE SOFTWARE, THE SUPPORTING DOCUMENTATION OR ANY SERVICES PROVIDED IN CONNECTION THEREWITH, EVEN IF M.D.O-L HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
If, notwithstanding the above disclaimers OR ANYTHING ELSE set forth herein to the contrary, M.D.O-L. is found liable by a court of competent jurisdiction, (as provided for in Section 12 below), as a consequence of this AGREEMENT, ACCESS TO THIS WEB SITE, the use or performance of the Software, the Software Documentation or ANY services provided (whether based on contract, negligence, tort, strict liability, breach of warranty or any other legal theory of liability whatsoever), the amount of M.D.O-L's liability shall not exceed the total of the fees paid by you to M.D.O-L. during the then-current term of THIS AGREEMENT.
You acknowledge that M.D.O-L has not authorized any person to issue or make representations or warranties on behalf of M.D.O-L in connection with Your access to this web site, and/or the Software or its use or capabilities other than those expressly set forth in (A) this Agreement and (B) the written materials provided by M.D.O-L describing the capabilities and functions of the Software.
Some jurisdictions do not allow excluding or limiting implied warranties or limiting liability for incidental or consequential damages, and some jurisdictions have special statutory consumer protection provisions that may supersede the limitations in this Section and take priority over the choice of laws provision set forth in Section 12 below. As a result, some or all of these limitations may not apply to the Agreement if such limitation is prohibited by the laws of Your jurisdiction.
7. DEFAULT. Your failure to pay all fees when due in accordance with this Agreement shall constitute a default. Upon default, all remaining fees under this Agreement shall be immediately due and payable by You. These fees include the Monthly Minimum Fees for the remaining months of the then-in-effect term of this Agreement and any fees for services incurred by You hereunder, whether before or after the date on which M.D.O-L declared You to be in default. You further agree to pay a 20% collection fee and any fees or costs incurred by M.D.O-L in recovering any remaining fees, including without limitation attorney's fees and Court costs.
8. TERM/TERMINATION. This Agreement will be effective for an initial term of 12 months from the establishment of Your account with M.D.O-L. Thereafter, upon the payment of the then-in-effect annual Registration/Maintenance Fee this License will automatically renew for successive 12-month periods, unless terminated by either party by providing the other party of 90 days written notice of the termination of this Agreement by the end of the then-current term. You will be obligated to pay the then-in-effect Monthly Minimum Fee during each annual term of the Agreement in addition to any transaction fees and/or other fees or charges that may apply for services being provided to You, plus all applicable taxes imposed or levied as a consequence of this Agreement or Your access to the web site or Your use of the Software. M.D.O-L may immediately terminate this License by giving You written or electronic notice in accordance with Section 12 below. Upon such termination, all of Your rights to access this web site and/or use the Software and the supporting documentation pursuant to this Agreement shall immediately terminate and You must immediately discontinue accessing the web site and using the Software and the supporting documentation.
9. INDEMNITY NOTICE TO LICENSEE. You acknowledge that this web site, the Software and/or the supporting documentation is subject to potential misuse by individuals, including employees, agents, and representatives of You. Therefore, You agree to completely defend, indemnify and hold M.D.O-L harmless with respect to any and all liabilities, claims, damages and/or expenses (other than those caused by M.D.O-L's intentional misconduct or gross negligence), which arise out of or are connected with Your access to the web site or Your use of the Software and/or the supporting documentation. Your obligation to indemnify M.D.O-L shall include the obligation to indemnify M.D.O-L for costs, expense and reasonable attorneys' fees. Your indemnification obligation will include the obligation to indemnify M.D.O-L for claims against it by anyone except for such claims arising out of the gross negligence or willful misconduct of M.D.O-L. Part of M.D.O-L's considerate in entering into this Agreement is Your agreement to indemnify, hold harmless and defend M.D.O-L from all such liabilities claims, damages, costs and expenses and, as such, this Indemnification provision is to be read to afford M.D.O-L the broadest protection permitted by law.
10. UPDATES and SERVICES. During each term of this Agreement, M.D.O-L may incorporate product updates and new releases of the Software part of this web site on a periodic basis. All product updates and new releases that are available to You shall be governed by the same terms of this Agreement. You may be required periodically to upgrade to a version of the operating system, or other third-party software used in connection with this web site or the Software at their current prices or to a release level compatible with and required to run new releases or updates of the Software, in order to continue to access the web site or Use the Software. You may also be required to procure additional memory or disk capacity in order to be able to access this web site or run new releases, versions or updates of the Software. You shall be responsible for procuring any such operating system, hardware upgrades or other third-party software, at Your sole expense. M.D.O-L SHALL HAVE NO OBLIGATION TO CONTINUE TO INCLUDE PRIOR VERSIONS OF THE SOFTWARE ON THIS WEB SITE. M.D.O-L may offer additional, optional services to You during the term of this Agreement. You may be required to provide certain information either to M.D.O-L or certain third parties in connection with some services that may be offered to You.
11. FORCE MAJEURE. If circumstances beyond the control of the parties shall temporarily make it impossible for either or both of them to perform their obligations under this Agreement, then the principles of force majeure (including but not limited to riots, storms, fires, earthquakes, explosions, embargoes, government directives or any other law or regulation, litigation or labor disputes, acts of God, war, or any other cause which is beyond the reasonable control of a party hereto) shall apply and the rights and obligations of the parties will be temporarily suspended during the force majeure period to the extent that such performance is reasonably affected thereby.
12. MISCELLANEOUS. By accessing this web site and Using the Software, You acknowledge and agree as follows: (a) You have read this Agreement and are bound by it. (b) This Agreement may not be modified or waived except in a written document signed by an officer of M.D.O-L. Any modification, differing terms or waiver contained on any document that You submit to M.D.O-L shall be invalid and ineffective, and this Agreement alone shall govern and control. (c) This Agreement, the then-in-effect M.D.O-L rate schedule, and any debit or credit card authorization submitted by You constitute our full agreement and You are not relying on any statements or representations concerning this web site or the Software made to You, other than contained in the manuals and other written materials furnished by M.D.O-L. (d) This Agreement shall be governed and controlled by substantive law of the State of New Jersey, without regard to any Conflict or Choice of Laws provision, and the federal law of the United States of America as applicable in the Courts of the State of New Jersey and all disputes relating to or arising out of this Agreement, the web site or the Software are to be filed in the State Court of New Jersey, venued only in Morris County and both You and M.D.O-L hereby consent to such jurisdiction and waive any rights they may to claim that such dispute is to be governed by the Laws of another jurisdiction. (e) If any term of this Agreement is held illegal or unenforceable by any court of competent jurisdiction, such terms shall be considered inoperable only to the extent of such illegality or unenforceability, and such holding shall not impair the validity or enforceability of any remaining term of this Agreement. The parties agree to replace any such illegal or unenforceable provision with a new provision, which has the most nearly similar permissible economic or other affect. (f) A waiver of the breach of any provision hereof shall not be deemed to be a waiver of the subsequent breach of such provision or a waiver of the breach of any other provision. (g) This Agreement shall be binding upon and inure to the benefit of the parties' permitted heirs, successors, and assigns. (h) No action arising out of this Agreement or relating to the use or possession of the Software may be commenced by You against M.D.O-L more than one year after the date on which the cause of action accrues. (i) Notices to either party in connection with this Agreement may be sent to You electronically at the e-mail address You provided when you requested that your account with M.D.O-L be established , or by First Class Mail or nationally recognized overnight delivery service to the address You provided when you requested that your account with M.D.O-L be established , or to M.D.O-L by Certified Mail, Return Receipt Requested at M.D. On-Line, Inc., 4 Campus Drive , Parsippany , NJ . 07054. Either party may change either its e-mail or postal address by notice pursuant to this provision. (j) This Agreement represents the final and complete understanding between the parties and their entire agreement with regard to the subject matter of this Agreement. The Agreement replaces and supercedes all previous oral or written agreements, understandings, arrangements, discussions or negotiations between the parties regarding the subject matter of this Agreement. (k) You hereby appoint M.D.O-L as your attorney-in-fact for the limited purpose of using the information You provide for the purpose of submitting electronic transactions and/or executing any physical paper (hard copy) transactions requesting payment of any Claims or related information on Your behalf. (l) In recognition of the sensitive nature of the information exchanged by the permitted use of the Software, You agree to execute M.D.O-L's Business Associate Agreement in conjunction with the establishment of Your account with M.D.O-L and Your use of the Software.
13. U.S. GOVERNMENT RIGHTS. The web site and associated software may include CPT® codes and descriptions which is commercial technical data and/or computer data bases and/or commercial computer software and/or commercial computer software documentation, as applicable which were developed exclusively at private expense by the American Medical Association, 515 North State Street, Chicago, Illinois, 60610. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose these technical data and/or computer data bases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (June 1995) and/or subject to the restrictions of DFARS 227.7202-1(a) (June 1995) and DFARS 227.7202-3(a) (June 1995), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (June 1987) and/or subject to the restricted rights provisions of FAR 52.227-14 (June 1987) and FAR 52.227-19 (June 1987), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements.