TERMS OF USE AGREEMENT

TERMS OF USE AGREEMENT

Updated on June 28, 2021

1. Introduction

These Terms of Use (“Terms”) govern your access and use of Services (defined below) that eClinicalWorks, LLC (“eCW”, “we”, or “us”) provides to our customers (health care providers or their firms, “Providers”) or on behalf of our customers to their patients. “Services” means eCW’s products and services, such as our websites (“Sites”), cloud-electronic health records systems including associated systems such as practice management systems, mobile applications, and other related products at which these Terms are posted.

Our Services may interact with one another and may further interact with other products and services owned and operated by eCW or its affiliates, including Healow, LLC (the “Affiliated Services”), and other services operated by unaffiliated third parties (“Third Party Services”). To be clear, and as discussed in Section 6, eCW does not provide any healthcare services.

When using certain Services, you may be presented with a Service specific terms of use agreement (“Service Specific Terms”). To the extent these Terms conflict with the Service Specific Terms, the Service Specific Terms shall control. If you are a Provider or are accessing the Services on behalf of a Provider, you or the Provider may have signed a service agreement, business associate agreement, or other document with terms and conditions for the Services (“Customer Documents”). Where these Terms and the Customer Documents conflict, the Customer Documents shall control.

2. General Terms and Conditions

BY DOWNLOADING, REGISTERING FOR ACCESS, ACCESSING, OR USING ANY OF THE SERVICES AT WHICH THESE TERMS ARE POSTED, OR BY AFFIRMING ACCEPTANCE OF THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THESE TERMS AND OUR PRIVACY POLICY. IF YOU DO NOT AGREE, DO NOT USE THE SERVICES OR ANY PART THEREOF.

NOTE SECTION 13.1 CONTAINS INFORMATION ABOUT A DISCLAIMER; SECTION 13.2 CONTAINS INFORMATION ABOUT LIABILITY LIMITS, SECTION 17 INCLUDES CHOICE OF LAW; SECTION 16 CONTAINS INFORMATION ABOUT HOW THESE TERMS CAN BE AMENDED; SECTION 18 CONTAINS INFORMATION ABOUT AGREEMENT TO ARBITRATION; SECTION 19 CONTAINS INFORMATION ABOUT A WAIVER OF CLASS ACTION; AND SECTION 21.6 CONTAINS INFORMATION ABOUT A TIME LIMIT ON THE FILING OF CLAIMS.

These Terms are a legally binding agreement made by and between eCW and you, whether you are using or accessing the Services for yourself, or on behalf of a minor or a person to whom you are a caregiver, or on behalf of a Provider). These Terms govern your access and use of the Services, and you should read them carefully. These Terms shall remain in effect at all times until you cease using the Services and delete all applications related to the Services or otherwise terminated in accordance with Section 16 below.

eCW reserves the right, at its sole discretion, to make changes to portions or all these Terms and the Privacy Policy at any time. You are responsible for checking these Terms and the Privacy Policy periodically for changes. Your continued use of the Services means that you agree to any new or modified provision of these Terms or the Privacy Policy accessible through the Services.

If you are a Provider customer of eCW, please refer to your Customer Documents with eCW for the grant of rights to the Services. Otherwise, eCW grants you a personal, limited, revocable, non-exclusive, nontransferable right to access and use the Services and Content for your personal and noncommercial use only.

eCW reserves all rights that it does not expressly grant to you under these Terms.

3. Content and Intellectual Property Information

The eClinical family of marks (including eClinicalWorks®, the registered eClinicalWorks design mark, eClinicalWorks Nimbus®, eClinicalWorks P2P®, eClinicalWorks Scribe®, eClinicalWorks Care Coordination Medical Record®, eClinicalMessenger®, eClinicalMobile®, and eClinicalTouch®), and eBO®, Electronic Health eXchange®, eEHX®, Improving Healthcare Together®, 100 Million Patients®, P2POpen®, and Open Access®, are federally-registered trademarks and service marks of eCW. eCW also owns the common law rights in these marks and the marks eClinicalCare™, eClinicalPad™, Join The Network™, 100 Million Steps™, and others (“eCW Marks”). You shall not use the eCW Marks without the express, written permission of eCW. Any third party trademark(s) that may appear on or in connection with the Services are the property of their respective owner(s).

The proprietary contents of the Services include, without limitation, the animations, applets, audio, data, design, graphics, illustrations, images, information, eCW Marks, music, photographs, text, video, and any other files displayed, used and/or available on or through the Services (the “Content”), as well as the arrangement, coordination, design, expression, look and feel, selection, and structure of such Content. The Content is owned, controlled, or licensed by or to eCW, and is protected by copyright, trade dress, trademark, and other intellectual property rights and unfair competition laws. eCW reserves all rights, title, and interests in the Content and the Services.

Except as expressly provided in these Terms or by eCW’s express written consent, you shall not copy, modify, reformat, lease, loan, sell, distribute, encode, post, publicly display, publish, republish, reproduce, derive creative works from, translate, upload, or otherwise exploit in any manner any part of the Services and Content.

4. Digital Millennium Copyright Notice and Other Reports of Infringement

Pursuant to 17 U.S.C. § 512(c)(2) (known as the Digital Millennium Copyright Act of 1998), if you believe that any content on our Services infringes on any copyright which you own or control, or that any link on our Services directs users to another service, such as another website, that contains material that infringes on any copyright which you own or control, you may file a notification of such infringement with us as set forth below. Notifications should include the following information:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activities and that is to be removed or access to which is to be disabled, and information sufficient to permit us to locate the material.
  • Contact information for the notifying party, including name, address, telephone number, and email address.
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please submit this notification to ECW’s designated agent:
Damon J. Whitaker, Esq.
Bryan Cave Leighton Paisner LLP
1201 West Peachtree St., NW
14th Floor
Atlanta, Georgia 30309
404-572-6913 (telephone)
404-420-0913 (facsimile)
damon.whitaker@bclplaw.com

If you are a patient, please do not contact ECW’s designated agent for technical support issues; contact your applicable healthcare provider or ECW. Any such technical support requests sent to the above designee may not be responded to or even received by ECW.

5. Access and Use of the Services

Subject to Section 20 addressing Force Majeure, eCW uses the means it believes are reasonable to provide access to the Services 24 hours a day, 7 days a week, and to provide necessary repair or maintenance operations required for the smooth operation of the Services. eCW disclaims any liability for any failure or deficiency in the performance of the Services for any reason whether such reason be maintenance, breakdown, or any event beyond eCW’s reasonable control as described in Section 20 addressing Force Majeure.

You acknowledge that data conversion and transmission in the Services is subject to the possibility of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media, that may give rise to loss or damage. eCW disclaims any liability for any such errors, omissions, delays, or losses. You acknowledge and agree that access, use, or download of the Services through connection to the Internet and/or use of mobile devices is inherently insecure and that information transmitted and received through such use may be subject to unauthorized interception, diversion, corruption, loss, access, and disclosure. eCW disclaims any liability for any adverse consequences whatsoever of your access, use, or download of the Services through such connection the Internet, and/or such use of mobile devices, and disclaims any liability for any use by you of an Internet connection in violation of any Applicable Laws (defined below), or any violation of the intellectual property rights of another.To access, use, or download the Services, you may be required to provide eCW with information about yourself (or the person or entity on whose behalf you are accessing, using, or downloading the Services). This information may include your name, email address, and telephone number. By submitting such information to eCW, you hereby represent and warrant that any and all such information that you provide to eCW is true and correct, and you authorize eCW to use any method it chooses to verify the truth and accuracy of the information to the extent eCW needs to do so to protect its rights or other users of the Services. eCW may terminate your access to the Services if you fail to provide truthful and accurate information.

5.1. Account Management

Some functionality of the Services (e.g., the Portals) requires you to have a user account associated with a username, password and/or PIN (“Account Credentials”) to securely access the functionality. Other functionality of the Services that may be accessed without Account Credentials is not subject to the same security and protections as the functions accessed using Account Credentials. If you are a registered account holder, you may be permitted to link certain of the Services with Affiliate Services and Third-Party Services using your Account Credentials. For example, you may be permitted to use your Account Credentials to link your Services user account with a Medicare user account.

You are solely responsible for maintaining the strict confidentiality of your Account Credentials. You shall not share your Account Credentials with any other person and shall not permit any other person to access, use, or download the Services using your Account Credentials. You will be solely responsible for any damages or losses that may be incurred or suffered by eCW as a result of your failure to maintain the strict confidentiality of your Account Credentials. You shall immediately inform eCW in writing of any need to deactivate your account due to potential or actual security concerns. eCW disclaims any liability for any harm related to the misappropriation of your Account Credentials, your intentional or negligent disclosure of such Account Credentials to another person, or your unauthorized sharing of Account Credentials that may allow another person or entity to access, use, or download the Services without eCW’s authorization. You shall not register for more than one account for any Service, including each website and application which may be available. You shall not utilize alter-egos or other disguised identities when accessing, using, or downloading the Services. We prohibit all forms of indirect and “spoofed” access.

5.1.1. Proxy Accounts

Parents or legal guardians of a minor may request registration of and access to an account for the minor in consultation with the minor’s healthcare provider after providing written consent to the minor’s healthcare provider. The minor’s healthcare provider provides such access at its discretion.

5.2. Children and Minors

If you are under 13 years old, you may not access, use, or download the Services. If you are 13 to 17 years old, you may not access, use, or download the Services, without the written consent and supervision of your parent(s) or guardian(s). By accessing, using, or downloading any of the Services, you represent and warrant that you are 18 years old or older, or otherwise that your parent(s) or guardian(s) have consented in writing to and supervised your access, download and use of the Services.

If you are a parent or a legal guardian of a minor age 13 to 17 years old, you represent and warrant that you shall not provide access to or use of the Services to the minor without first executing a written consent form in consultation with the minor’s healthcare provider.

Under state and federal laws, there are certain types of medical information that a parent or legal guardian of a minor age 13 to 17 may not view without consent of the minor or at the discretion of the healthcare provider. Because of these requirements, the minor’s healthcare provider may not grant full Services access to parents or legal guardians of a minor in this age category.

5.3. United States Only

To access, use, or download the Services, you must be a resident of the 50 States of the United States of America, exclusive of its commonwealths, territories, and possessions. By accessing, downloading, or using any of the Services, you represent and warrant that you a resident of the 50 States of the United States of America.

6. Medical Disclaimers; No Provider/Patient Relationship; Provider Information

Your use of the Services and/or any information or Content that is included on or transmitted through the Services is not intended to and will not create any healthcare provider/patient relationship of any kind between you and eCW or its affiliates – this shall be true whether you are utilizing any of the Services (e.g., provider location services) or links to Affiliated Services that may assist a user in locating a medical professional.

eCW does not guarantee that communications between patients and Providers occurs in real-time.

Any Content available on or through the Services is for informational and educational purposes only and is not a substitute for the professional judgment of a healthcare professional in diagnosing and treating patients. Neither the Content nor any Services is intended to be substituted for medical diagnosis or treatment. eCW does not recommend or endorse any specific drugs, tests, physicians, products, procedures, opinions, “off-label” drug uses or other information that may be mentioned on or transmitted through the Services (regardless of whether the foregoing is mentioned or transmitted by healthcare providers, insurance providers, or similar professionals or organizations). Your reliance upon any information obtained or used by you is solely at your own risk. eCW disclaims any liability for the accuracy of any information or Content provided or sent by you or other users of the Services, including your physician, other healthcare providers, insurance providers, or their representatives. You shall be responsible for verifying the accuracy of any information you send or receive through the Services, including any of your patient health information, data, or records. IF YOU HAVE AN EMERGENCY, DO NOT USE THE SERVICES TO CONTACT YOUR HEALTHCARE PROVIDER – INSTEAD, YOU SHOULD IMMEDIATELY CALL 911 AND REQUEST EMERGENCY CARE ASSISTANCE.

eCW disclaims any liability in any way to you for any decision you make or any actions that occur in connection with the use of the Services in locating and/or starting a relationship with a medical professional. eCW has no control over, cannot and does not guarantee the availability of any provider that is a part of the Services at any particular time. eCW will not be liable or responsible in any way for cancelled or otherwise unfulfilled appointments or any injury resulting therefrom, or for any other injury resulting from the use of the Services whatsoever.

You shall perform an independent investigation prior to selecting a healthcare professional by making telephone calls to the appropriate licensing authorities to verify listed credentials and education, and to further verify information about a particular doctor or other healthcare provider by confirming with the Provider’s office, your current Provider, the medical association relative to the Provider’s specialty and your state medical board, and consulting other sources as may be appropriate.

eCW makes the Services available to its customers and their patients for the purposes of providing an informative and educational resource. eCW may, but has no obligation to, review Content posted on the Services. eCW does not guarantee the timeliness and accuracy of any or all the Content. Neither the authors (whether users of the Services or not), eCW, nor any other party who has been involved in the preparation or publication of any Content can assure you that such Content is in every respect accurate or complete. eCW disclaims liability for any errors or omissions or for the results obtained from the use of such Content.

The procedures, products, services, and devices discussed and/or advertised within the Services are not applicable to all individuals, patients, or all clinical situations. eCW makes no claims as to the effectiveness of any such procedures, products, services, or devices. You acknowledge and agree that any products and/or services represented on the Services by advertisers, sponsors, and other Services participants, either paid or unpaid, are presented for your awareness and do not necessarily imply appropriateness for any particular individual or prediction of effectiveness, outcome or success. eCW disclaims any liability in connection with your use of such procedures, products, services, or devices.

7. Compliance with Laws; Transmission of Data

Certain Services that eCW provides to our Provider customers or make available to their patients involve access to, and the processing of, PHI (defined below) that is provided to us pursuant to the Customer Documents that we have entered with our Provider customers. With respect to its operation of the Services, and to the extent required by (A) the Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations (“HIPAA”), and (B) the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and any regulations promulgated thereunder (HIPAA and HITECH are collectively referred to herein as the “Privacy Laws”), eCW will, subject to the Customer Documents, comply with the Privacy Laws applicable to business associates and maintain the confidentiality of any Protected Health Information which is individually identifiable health information that is protected by HIPAA (“PHI”) transmitted or made available through the functionality of the Services or the Affiliated Services. If you are a patient of a Provider, our use of PHI is governed by HIPAA and other Applicable Laws and the Customer Documents with your Provider.

You acknowledge and agree that these Terms may be amended from time to time if necessary to comply with the Privacy Laws. The requirements of this Section 7 will survive the termination of your use of the Services.

When you use the Services to upload, transmit, or receive PHI, you agree that, to the extent applicable, you shall comply with all applicable local, state, federal or international law, rule, or regulation, including, but not limited to, the Privacy Laws, any court order, or other order or decision in any governmental, administrative or judicial proceeding (collectively “Applicable Laws”). You represent and warrant that you will, at all times, comply with all directly or indirectly Applicable Laws that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of PHI. You agree that eCW, and all other persons or entities involved in the operation of the Services, have the right to monitor, retrieve, store, review, and use PHI, if applicable, in connection with the transmission of any PHI.

To the extent permissible under Applicable Laws, you hereby grant to eCW a perpetual, unlimited license to use the data and information that is compiled or passes through the Services that specifically relates to you, your patient care, your Provider’s procedures or diagnoses, or insurance provider procedures, policies, coverage, or payments, and any related information (collectively, the “Client Data”), in a de-identified format as defined under the Applicable Laws for data benchmarking, sharing, warehousing, resource utilization, and similar data analysis services; provided, however, that eCW shall comply with the Applicable Laws in connection with any such actions.

eCW DISCLAIMS ANY LIABILITY FOR YOUR USE OR MISUSE OF PHI OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED OR RECEIVED WHILE USING THE SERVICES WHETHER TO A PROVIDER LOCATED USING THE SERVICES OR OTHERWISE. ECW RESERVES THE RIGHT TO AMEND OR DELETE ANY UPLOADED CONTENT (ALONG WITH THE RIGHT TO REVOKE ANY MEMBERSHIP OR RESTRICT ACCESS TO THE SERVICES) THAT IN eCW’S SOLE DISCRETION VIOLATES ANY PROVISIONS OF THIS SECTION OR THE TERMS OF USE IN GENERAL.

8. Prohibited Conduct

You may only use the Services for lawful purposes in compliance with Applicable Laws. In your access, use or download of the Services, you shall not: (i) infringe any copyright, patent, right of privacy, right of publicity, trademark, trade secret, or other right of eCW or any third party; (ii) abuse, defame, harass, or stalk any individual or other user of the Services; (iii) interfere or attempt to interfere with, or damage or attempt to damage, the Services or the proper working of the Services, including, without limitation, through the use of cancel bots, denial of service attacks, flood pings, forged routing or electronic mail address information, harmful code, packet or IP spoofing, phishing, Trojan horses, viruses, or similar methods or technology; (iv) use any deep-link, page-scrape, robot, spider, or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Services or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Services or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Services; (v) misrepresent your identity, provide false information, impersonate another person or entity, misrepresent your affiliation with a person or entity, including, without limitation, eCW, create or use a false identity, or attempt to use another user’s account; (vi) attempt to obtain unauthorized access to any website or mobile device application through the Services; (vii) engage, directly or indirectly, in transmission of chain letters, junk mail, spam, or any other type of unsolicited solicitation; (viii) collect, reverse look-up, trace or seek to trace, manually or through automated means, information about other users of the Services without their express consent or other information relating to the Services; (ix) use any meta tags or any other hidden text utilizing the eCW names, service marks, trademarks, or product or service names; (x) advertise, offer to sell, or sell any goods or services set forth in the Services or otherwise use the Services to solicit other users, except as expressly permitted by eCW; (xi) engage in any activity that interferes with any third party’s ability to use or enjoy the Services; (xii) probe, scan or test the vulnerability of the Services or any network connected to the Services, or breach the security or authentication measures on the Services or any network connected to the Services; (xiii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or eCW’s systems or networks, or any systems or networks connected to the Services or eCW; (xiv) attempt to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate any of the Services, or otherwise alter, defraud, or create false results from any of the Services; (xv) create any product or service that competes directly or indirectly with any of the Services; or (xvi) assist any third party in engaging in any activity prohibited by these Terms.

9. Communication of Other Information To and On the Services

The Services may at some point contain features that allow you to submit content or messages in the form of text, pictures, drawings, designs, graphics, audio clips, video clips, documents, or other files that are then accessed by other Services users or through the Sites or applications (a “Posting”). If such functionality is available, you shall not submit any Posting that: (i) restricts or inhibits any other user from using and enjoying the Services or any Affiliated Services, in whole or in part; (ii) is abusive, defamatory, inaccurate, indecent, false, libelous, misleading, obscene, offensive, pornographic, profane, threatening, sexually explicit, vulgar, or unlawful in any manner; (iii) constitutes or encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violates any law, rule or regulation; (iv) violates, plagiarizes, or infringes the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (v) contains a virus or other harmful component; (vi) contains any information, software or other material of a commercial nature; (vii) contains advertising, promotions or commercial solicitations of any kind; or (viii) constitutes or contains false or misleading statements of fact.

By submitting or authorizing any Posting, you grant eCW a perpetual, worldwide, royalty-free, exclusive, sublicensable and irrevocable right and license to use, copy, reproduce, distribute, perform, and display such Posting (and any information contained therein) and derivative works thereof, in whole or in part, in any form, media or technology known or hereafter developed as long as such use is consistent with eCW’s applicable obligations set forth in these Terms. you hereby irrevocably waive any claims based on moral rights or similar doctrines and theories, and based on the right of privacy, misappropriation, right of publicity, unfair competition and similar doctrines, theories, and torts.

You acknowledge and agree that eCW will not pre-screen Postings, and that eCW and its designees have the right (but not the obligation) in their sole discretion to block or restrict access to or the availability of, or to edit, disable or remove, any Posting that is available via the Services or the Affiliated Services. By way of example and without limiting the foregoing, eCW and its designees may edit, disable, remove, or restrict access to or the availability of, any Posting that violates these Terms or is required to be reviewed, monitored, edited, or deleted in accordance with Applicable Laws. You shall evaluate and assume all liability associated with the use of any Postings, including any reliance on the accuracy, completeness, or usefulness of such Postings. eCW disclaims any liability arising from the use of any Posting by you or any third party.

10. Ads; Communications with Users; Links To Third Parties

The Services may include sponsored advertising and you hereby acknowledge and agree that by accessing, using, or downloading the Services, you consent to the presence of sponsored ads and services on the Services, which advertising will be placed at eCW’s sole discretion. Such ads may be placed vertically on the left or right side, or horizontally on the bottom, of any displayed page on the Services. Sponsored ads are delineated from other content on the Services using boxes surrounding the advertisement, a different colored background or other similar means and contain a header with the words similar to “Advertisement or Sponsorship.”

In addition to the foregoing advertising, you consent to eCW contacting you, through the Services or using the contact information you have provided, regarding certain offers, products, or services of eCW or other of its partners that eCW believes may be of interest to you. You understand and agree that eCW may contact you in this manner. You may also be asked to grant an authorization for (i) eCW to use your PHI in connection with its business partners and the advertising, offers, products or services that may be directed to you, and (ii) eCW to “push” notifications to you through your mobile device(s). By accepting such Service Specific Terms in the process of accessing, using, or downloading (such process including registration for a user account) the Services, you authorize eCW to act in these manners as specified in such Service Specific Terms.

The Services may also contain links to the websites of eCW affiliates, partners, advertisers, or unrelated third party companies or links to other websites or mobile applications (collectively, “Linked Sites”).

eCW does not own and has no control over the Linked Sites and disclaims any liability, and warranties, and makes no representations with respect to the availability of these Linked Sites, their content, advertising material, and the products or services available at or through the Linked Sites. eCW does not endorse any Linked Sites, is not bound by the terms and conditions, if any, of such Linked Sites, and the existence of a Linked Site does not mean that eCW has any affiliation, connections, endorsement, or sponsorship of such Linked Sites or their owners or operators. References or hypertext links made or included on the Services to any names, logos, or marks of third parties, including, without limitation, the Linked Sites’ partners or Linked Sites’ products and services, do not constitute or imply our endorsement, sponsorship, or recommendation. You acknowledge and agree that eCW disclaims any responsibility or liability, including for any direct or indirect damage, that may result from your visit to a Linked Site; from your use of the contents, products, or services of a Linked Site; from your contact with their owners or operators; or in connection with any Linked Site. You acknowledge and agree that your use of a Linked Site shall be solely at your own risk and will be subject to that Linked Site’s terms of use, privacy policies, and other practices. We have no obligation to inform or update you regarding the terms and conditions of access, use or service, or the privacy policies of Linked Sites. If you have any questions or concerns regarding any Linked Site, you should review any terms and conditions and privacy policy maintained by that Linked Site or contact the applicable party or their website administrator.

11. Privacy

Our Privacy Policy applies to use of the Services, and its terms are hereby incorporated and made a part of these Terms.

12. Your Representations, Warranties, and Indemnification to eCW

You represent, warrant, and covenant to eCW that: (i) you have the full power and authority to enter into and perform your obligations under these Terms; (ii) your assent to, and performance of, your obligations under these Terms do not constitute a breach of or conflict with any other agreement or arrangement by which you are bound, or any Applicable Laws; (iii) you are able to form a legally binding contract, and these Terms constitute legal, valid, and binding obligations on you, enforceable in accordance with their terms; (iv) you will not infringe the patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other intellectual property or proprietary right of eCW or any third party in your use of the Services or any Affiliated Services; (v) you have provided complete, truthful, and accurate information about yourself for purposes of accessing, using and downloading the Services; (vi) you are not using, and will not use, the Services, any Affiliated Services, or any information contained therein for any improper, harassing, or unlawful purpose; (vii) you will comply with all Applicable Laws in your use of the Services and the Affiliated Services, including these Terms; and (viii) you are not a paid consultant or have any other financial interests in the information you provide on the Services or any Affiliated Services including, but not limited to, the promotion of “off label” drug uses, the disclosure of the results of confidential clinical trials or any other proprietary information.

You agree to indemnify and hold eCW and its owners, employees, representatives, agents, attorneys, affiliates, directors, officers, members, and managers (“Indemnified Parties”) harmless from any and all damages, losses, costs, fine, settlement, or expenses (including without limitation, attorney’s fees and costs) incurred in connection with any third-party claim, demand or action (including, without limitation, any regulatory or government authority, or third party in a judicial action or administrative proceeding) (“Claim”) brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach by you of any provision of these Terms of Use; (ii) arising from, related to, or connected with your access, use or download of the Services, any Affiliated Services and/or its Content; or (iii) arising from, related to, or connected with your non-compliance with any Applicable Laws.

13. Disclaimers, Exclusions and Limitations

As used below in this section, “eCW Representatives” refers to eClinicalWorks, LLC, and its owners, employees, representatives, agents, attorneys, affiliates, directors, officers, members, managers, volunteers, and suppliers.

13.1. DISCLAIMER OF WARRANTIES

THE SERVICES, CONTENT AND ANY INFORMATION INCLUDED ON OR PROVIDED THROUGH THE SERVICES OR THE AFFILIATED SERVICES (INCLUDING ALL RELATED WEBSITES AND APPLICATIONS) ARE PRESENTED ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE eCW REPRESENTATIVES DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND LACK OF NEGLIGENCE OR WORKMANLIKE EFFORT.

WITHOUT LIMITING THE FOREGOING PROVISIONS:

  • (1) YOU ASSUME SOLE RESPONSIBILITY FOR SELECTING THE SERVICES AND/OR THEIR CONTENT TO ACHIEVE YOUR INTENDED RESULTS AND SOLE RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM, THE SERVICES AND/OR THEIR CONTENT;
  • (2) THE eCW REPRESENTATIVES MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICES, ANY AFFILIATED SERVICES AND/OR ANY CONTENT WILL BE ERROR-FREE, SECURE, VIRUS FREE, OR FREE FROM INTERRUPTIONS, DEFECTS OR OTHER FAILURES OR HARMFUL COMPONENTS OR THAT THE SERVICES, ANY AFFILIATED SERVICES AND/OR THEIR CONTENT WILL SATISFY YOUR SPECIFIC REQUIREMENTS OR BE COMPATIBLE WITH YOUR EQUIPMENT (MOBILE OR OTHERWISE) OR OTHER HARDWARE, SOFTWARE OR BROWSER CONFIGURATION OR THAT INACCURACIES OR ERRORS WILL BE CORRECTED;
  • (3) THE eCW REPRESENTATIVES MAKE NO REPRESENTATION OR WARRANTY THAT THE INFORMATION OBTAINED FROM THIRD PARTY SOURCES (INCLUDING, BUT NOT LIMITED TO, ANY USERS OF THE SERVICES) USED ON OR WITHIN THE SERVICES OR ANY AFFILIATED SERVICES OR RECEIVED IN CONNECTION WITH CONVERTING OR TRANSMITTING ANY DATA RECEIVED IN DIFFERENT FORMATS IS ACCURATE, TIMELY, OR ERROR FREE, AND THE eCW REPRESENTATIVES ARE NOT RESPONSIBLE IN ANY WAY FOR THE INFORMATION OBTAINED FROM SUCH SOURCES;
  • 4) THE eCW REPRESENTATIVES MAKE NO REPRESENTATION OR WARRANTY THAT THE INFORMATION PROVIDED BY USERS TO GAIN ACCESS AND PERMISSION TO USE THE SERVICES, ANY AFFILIATED SERVICES, OR OTHER INFORMATION POSTED BY USERS IS ACCURATE OR ERROR FREE; AND
  • (5) THE eCW REPRESENTATIVES MAKE NO REPRESENTATION OR WARRANTY REGARDING THE SUITABILITY OF ANY PERSONS PARTICIPATING IN THE SERVICES OR THE AFFILIATED SERVICES OR REGARDING THE CHARACTER OR INTEGRITY OF SUCH PERSONS.

SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.

13.2. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL THE eCW REPRESENTATIVES OR THE THIRD PARTIES MENTIONED ON THE SERVICES OR THE AFFILIATED SERVICES (AND ALL RELATED WEBSITES AND APPLICATIONS) BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES OF ANY CHARACTER WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SERVICES, THE AFFILIATED SERVICES, RELATED WEBSITES AND APPLICATIONS, AND/OR THEIR CONTENT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THESE TERMS OF USE, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY BY THE eCW REPRESENTATIVES OR THE THIRD PARTIES MENTIONED ON THE SERVICES OR ANY AFFILIATED SERVICES (OR RELATED WEBSITES AND APPLICATIONS), AND EVEN IF THE eCW REPRESENTATIVES OR THE THIRD PARTIES MENTIONED ON THE SERVICES OR ANY AFFILIATED SERVICES (OR RELATED WEBSITES AND APPLICATIONS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.

14. Violation of These Terms of Use

You agree that eCW may, in its sole discretion and without prior notice, terminate your access to the Services and/or any related websites or applications if eCW determines in its sole discretion that you have violated these Terms.

eCW may disclose any information it has about you, including your identity, if it determines that such disclosure is necessary as part of any investigation or complaint regarding your use of the Services, or to identify, contact or bring legal action against someone who may be causing injury to or interference with eCW’s rights or property, or another person’s rights or property. eCW reserves the right to disclose any information eCW deems necessary to comply with any Applicable Laws, and also when it determines that Applicable Laws permit such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.

You acknowledge and agree that eCW may preserve any communication by you with eCW through the Services and/or the Affiliated Services or any service offered on or through the Services and/or the Affiliated Services, and may disclose such communications when required by Applicable Laws or if eCW deems that such preservation or disclosure is reasonably necessary to: (1) comply with legal process; (2) enforce these Terms; (3) respond to a claim that any communication, information posted on the Services, the Affiliated Services, or Content violates the rights of others; or (4) protect the rights, property or personal safety of eCW and its employees, users of or visitors to the Services and/or the Affiliated Services, and/or the public.

If eCW takes legal action against you as a result of your violation of these Terms, eCW will be entitled to recover from you, and you agree to pay, all reasonable attorney’s fees and costs of such action, in addition to any other relief granted to eCW. You agree that eCW will not be liable to you or to any third party for termination of your access to the Services and/or the Affiliated Services or removal of any communication or posting of information by you, or contents thereof, as a result of any violation of these Terms.

15. Void Where Prohibited

eCW reserves the right to limit, in its sole discretion, the provision and quantity of any Service, Content, or feature, product, or service thereof to any person or geographic area, whether by reason of the local laws applicable in such geographic area or otherwise. Any offer for any feature, product, or service made on the Services and/or the Affiliated Services is void where prohibited.

16. Modification or Termination of the Services

These Terms will remain in full force and effect as long as you continue to access, use or download the Services. You may terminate your use of the Services at any time by ceasing to use the Services. If you are a registered account holder, you may terminate your account by contacting us at help@healow.com. If you terminate your account, your account may remain active until the end of your then-current month.

eCW may, in its sole and absolute discretion and without any liability, change, discontinue, make improvements to, modify, or suspend, any aspect or all the Services and/or the Affiliated Services, temporarily or permanently, at any time and for any reason without prior notice. eCW may notify you of these changes by updating the posting of these Terms or by other means (e.g., via e-mail). Upon any termination of these Terms, all rights granted to you under these Terms will cease. You shall comply immediately with any termination or other notice, including, as applicable, by ceasing all use of the Services. eCW is under no obligation to retain a record of your account or any data or information that you may have used, disclosed, processed, retrieved, transmitted, or viewed on eCW.

17. Governing Law

These Terms of Use shall be governed, construed, and applied in all respects by the laws of the Commonwealth of Massachusetts, without regard to any provision governing conflicts of law.

18. Arbitration

Any and all controversies, claims, or disputes arising out of, relating to, or connected with these Terms of Use or your use of the Services and/or the Affiliated Services shall be referred to and settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions set forth under the AAA’s Commercial Arbitration Rules and any other applicable rules and procedures (“Rules”) by a panel of three arbitrators appointed in compliance with the Rules. This includes all disputes over arbitrability.

The Parties to this Agreement further acknowledge and agree that:

  • 18.1. the location of the arbitration, including the location of all arbitration hearings, shall be Boston, Massachusetts;
  • 18.2. the arbitral award shall address the costs and expenses of arbitration and all matters related thereto, including, the allocation of same between the parties;
  • 18.3. the award of the arbitrators shall be final and binding upon the parties; and
  • 18.4. the parties submit to the jurisdiction of the federal courts of Massachusetts for the purposes of ratifying any award made pursuant to arbitration proceedings conducted in accordance with this clause and/or may enforce the award through such courts.

By using the Services and/or the Affiliated Services, you expressly waive your right to pursue all controversies, claims, or disputes in court and instead must submit any such controversies, claims, or disputes to arbitration as described above.

19. Waiver of Class and Joint Claims

Any arbitration (or, if arbitration of the action is not permitted by law, litigation) shall be solely on behalf of an individual person and shall not be consolidated or joined with the claims of any other person or brought on behalf of a putative class unless previously agreed to in writing by both you and eCW or you and Healow, LLC.

20. Force Majeure

We will not be deemed to be in breach of these Terms or liable for any breach of these Terms or our Privacy Policy due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, Internet outage, labor disturbance, earthquakes or floods, civil disorder, strikes, fire, pandemics, epidemics, or other disaster (including without limitation, natural, technological, or social).

21. Miscellaneous

21.1. Severability

If any provision of these Terms are ruled by a court, arbitral tribunal, administrative officer or other entity of competent jurisdiction to be void or unenforceable, such provision(s) shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best furthers the intent of these Terms, with all remaining provisions remaining in full force and effect.

21.2. Entire Agreement

These Terms and the Privacy Policy constitute the entire agreement between you and eCW with regard to your access and use of the Services and/or the Affiliated Services. No counter-offers to these Terms of Use shall be accepted by eCW, and eCW rejects all such counter-offers.

21.3. Assignment

eCW may assign its rights, in whole or in part, in the Services and/or the Affiliated Services in accordance with its sole discretion.

21.4. No Agency

Nothing contained in these Terms creates any agency, partnership, or other form of joint enterprise between you and eCW.

21.5. No Waiver

eCW’s failure or delay to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver of any provision or any right that eCW has to enforce these Terms of Use.

21.6. Time Period for Filing Claims

You acknowledge and agree that it is the intent of both you and eCW to limit the period of time in which a claim may be filed, even if the period is shorter than that fixed by the statute of limitations. You therefore agree that any cause of action arising out of or related to eCW must commence within one (1) year after the cause of action accrues, otherwise such cause of action is permanently barred.

21.7. No Third Party Beneficiary

These Terms of Use do not confer any rights or remedies on any third parties.