Last updated: May 1, 2012
Terms and Conditions
The following describes the terms and conditions which are applicable to subscribers of the Patient Activator Concierge® service and related software (“Service”) available under the domain and sub-domains of http://www.patientactivator.com (the “Site”). The Service and Site are owned and administered by Futuredontics, Inc., dba Patient Activator (collectively, “Patient Activator,” “Futuredontics,” “we” or “us”).
- Services and Fees
The Site and Service works with Subscriber’s practice management software to manage patient retention and relationships, analyze business operations and return on investment, and communicate with Subscriber’s patients (“Consumers”) via phone, e-mail and/or text message.
During the time that any new Subscriber is an active member of the 1-800-DENTIST service and the maximum number of leads per month is 5 or higher, or as otherwise agreed to in writing by Futuredontics, the Subscriber shall pay a discounted rate of $99.00 per month. The discounted rate shall be effective as of the first billing cycle following qualification.
Any Subscriber who is not an active member or an active 1-800-DENTIST member on the service with the maximum number of leads per month at less than 5, shall pay the then current monthly service fee or promotional rate, as quoted.
Fees for other services, which include but are not limited to dormant, appointment reminder and re-care phone calls will be charged monthly on an as-quoted basis.
Futuredontics reserves the right to increase the monthly service fees upon 30 days’ notice. Continued use of the Service and Site after notification shall constitute your consent to such increase.
Service fees are due and payable on the first business day of the month, or unless as agreed to by Futuredontics. Subscriber authorizes Futuredontics to automatically debit the credit card provided by Subscriber. If payment is not received when due, Futuredontics may immediately suspend or terminate Subscriber’s use and access to the Service and Site.
The term of this Agreement is on a month-to-month basis. Each party may terminate this Agreement upon written notice to the other party, no cause necessary. The effective date of termination is either 30 days’ notice or the end of Subscriber’s billing cycle, whichever is greater. Pro-rated refunds will not be provided.
- Intellectual Property
The parties agree that Futuredontics owns all right, title and interest to the trademarks, service marks, copyrights and/or other intellectual property rights of Patient Activator, the Patient Activator technology, the Service and the Site, except for any reviews obtained through the Patient Activator Service, which shall be owned by Subscriber. During the term of this Agreement, subject to the terms and conditions of this Agreement and the End User License Agreement, Patient Activator grants Subscriber a persona, limited, non-exclusive, non-transferable right to use the Service solely for its own business purpose. Subscriber shall not sell, re-sell, license, sublicense, assign, distribute or make available the Patient Activator technology or Service to any third party. Subscriber shall not modify or make derivative works of the Service; create links to the Service or frame or mirror any Site pages; or reverse engineer, republish or copy any materials from the Site or Service.
- Spam Policy
We prohibit the use of the Site and Services in any manner associated with the transmission, distribution or delivery of any unsolicited bulk or unsolicited commercial e-mail ("Spam"). You may not use any Services and/or Site to send Spam. You also may not deliver Spam or cause Spam to be delivered to any Consumers. In addition, e-mail sent, or caused to be sent, using the Services and/or Site may not:
- Use or contain invalid or forged headers;
- Use or contain invalid or non-existent domain names;
- Employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path;
- Use other means of deceptive addressing;
- Use a third party's internet domain name, or be relayed from or through a third party's equipment, without permission of the third party;
- Contain false or misleading information in the subject line or otherwise contain false or misleading content;
- Fail to comply with additional technical standards described below;
- Otherwise violate this Agreement.
We do not permit or authorize any attempt to use the Services in a manner that could damage, disable, overburden or impair any aspect of any of our Site or Services, or that could interfere with any third party’s use and enjoyment of the Service.
If we believe that unauthorized or improper use is being made of any Service, it may, without notice, take such action as it, in its sole discretion, deems appropriate, including blocking messages from a particular internet domain, mail server or IP address. We may immediately terminate any Subscriber’s account on any Service which we determine, in our sole discretion, is transmitting or is otherwise connected with any e-mail that violates this policy.
You agree to defend, indemnify and hold Futuredontics, its directors, officers, agents, subsidiary companies, employees, affiliates and representatives harmless from and against any losses, costs or claims, including court costs and attorneys’ fees and costs, arising from or asserted by a third party against the indemnified parties due to or arising out of your breach of this Agreement, your violation of any law or the rights of any third party and/or any use of the Service and Site.
- Warranties and Representations
You warrant and represent to Futuredontics that you possess all request rights, power and authority to execute this Agreement and perform its obligations hereunder, the transactions hereunder will not result in a breach or violation of, or a default under, any agreement by which you are bound, and that you will not engage in any of the following activities, and will make commercially reasonable efforts to ensure that your affiliates also will not: violate any law (including but not limited to the Federal Trade Commission Act, CAN-SPAM Act of 2003 and/or any applicable rules or regulations of the Federal Trade Commission); or engage in activities that: (a) give rise to criminal or civil liability or infringe any copyright, patent, trademark or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of any third party; (b) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez content or conduct; or (c) encourage conduct that would constitute unlawful conduct or offensive conduct.
THE SERVICE IS PROVIDED "AS IS", AND FUTUREDONTICS MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTIES OR CONDITIONS REGARDING THE SERVICE OR TECHNOLOGY. FUTUREDONTICS, ITS REPRESENTATIVES, PARTNERS AND AFFILIATES DISCLAIM ANY WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICE OR TECHNOLOGY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR HARMFUL CODE. FUTUREDONTICS MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTIES OR CONDITIONS AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SERVICE OR SITE.
- Limited Liability
FUTUREDONTICS SHALL NOT BE LIABLE FOR SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, TORT OR COVER DAMAGES; DAMAGES FOR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, WHETHER OR NOT YOU HAVE ADVISED US OF THE POSSIBILITY OF SUCH DAMAGES; COSTS OF SUBSTITUTE SERVICES;OR LOSS OF DATA RESULTING FROM DELAYS, SERVICE BREACHES OR SERVICE INTERRUPTIONS.
IN NO EVENT SHALL FUTUREDONTICS BE LIABLE TO ANY SUBSCRIBER IN ANY AMOUNT THAT EXCEEDS THE AMOUNT OF FEES PAID OR CHARGED FOR A MONTH OF SERVICE. For the avoidance of doubt, Subscriber expressly agrees that Subscriber’s sole and exclusive remedy for any and all claims for damage under this Agreement is limited to the total sum of fees paid by Subscriber for one month, or if Service is being provided for free, for the value of one month of service.
- 10.1 Governing Law
Futuredontics, Inc. maintains this Site in California, U.S.A. and all Subscribers agree that this Agreement will be interpreted and construed in accordance with the laws of the State of California without reference to its choice of law rules. Any disputes arising out of this Agreement shall be resolved before a single arbitrator through binding arbitration to be conducted before J.A.M.S./Endispute, Inc. in Los Angeles, California, and under its then existing rules governing arbitration of commercial disputes. Any award made by an arbitrator shall be binding upon the parties and may be entered into judgment in a court of competent jurisdiction.
- 10.2 Independent Contractor
Neither party shall represent itself to be an agent, joint venturer, principal or owner of the other.
- Complete Agreement
This Agreement constitutes the parties’ complete agreement as to the subject matter covered by this Agreement and supersedes all prior verbal or written agreements.
- Business Associate Agreement
The parties have entered into an agreement above, pursuant to which Futuredontics ("Business Associate") may provide certain Services outlined above to Subscriber ("Covered Entity"). As a result of providing the Services, Business Associate and its subcontractors, employees, affiliates, agents or representatives may have access to certain Protected Health Information ("PHI"), defined below, and Business Associate may be considered a "business associate" of Covered Entity as defined in the HIPAA Regulations (defined below). The parties wish to address the requirements of the HIPAA Regulations and ensure that Business Associate will establish appropriate safeguards, including without limitation certain administrative requirements with respect to such PHI. In consideration of the foregoing and the covenants and promises contained in this Agreement above and this Business Associates Agreement, the parties agree as follows:
- 12.1 Definitions
- "Breach" shall have the same meaning as set forth in 45 C.F.R. § 164.402.
- "Electronic Protected Health Information" shall mean any PHI which is also "electronic protected health information" as that term is defined in 45 CFR §160.103.
- "Designated Record Set" shall have the meaning given to such term under the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164m Subparts A, D.
- "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, and all regulations promulgated thereunder.
- "HIPAA Regulations" shall mean HIPAA and the HITECH Act.
- "HITECH Act" shall mean the Health Information Technology for Economic and Clinical Health Act, Public Law 111-105 and regulations promulgated thereunder.
- "Individually Identifiable Health Information" means information that is a subset of health information, including demographic information collected from an individual that is: (1) created or received by a healthcare provider, health plan, employer or healthcare clearinghouse; and (2) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; and (a) that identifies the individual; or (b) with respect to which there is a reasonable basis to believe the information can be used to identify the individual.
- "Protected Health Information" or "PHI" shall mean protected health information (as that term is defined in CFR §160.103) that the Business Associate (i) creates for or receives from Covered Entity or on Covered Entity’s behalf or (ii) that Business Associate maintains or transmits for Covered Entity or on behalf of Covered Entity. Protected Health Information shall also include electronic PHI.
- "Security Incident" means the attempted or successful unauthorized access, use, disclosure, modification or destruction of information or interference with system operations in an information system.
- Any terms capitalized, but not otherwise defined, in this Agreement shall have the same meaning as those terms have under HIPAA, the HIPAA Privacy Regulations, the HIPAA Security Regulations and the HITECH Standards.
- 12.2 Use and Disclosures
Business Associate may only use or further disclose PHI as permitted or required by this Agreement above or this Business Associates Agreement or as required by law if such use or disclosure of PHI would not violate HIPAA or any applicable state laws if the Covered Entity were making the same use or disclosure. Business Associate shall request, use and disclose only the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.
- 12.3 Specific Permitted Use and Disclosure
Except as otherwise limited by this Business Associates Agreement, Business Associate may use and disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate; provided, however, that (1) such PHI may be disclosed for such purposes only if the disclosures are required by law; or (2) Business Associate obtains certain reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as required by law or for the purpose for which the information was disclosed to the person; and the person will notify Patient Activator of any instances of which it is aware in which the confidentiality of the information has been breached.
Upon becoming aware of any use or disclosure of PHI which is not provided for by this Business Associates Agreement, Business Associate shall: (1) inform Covered Entity in writing of any such use or disclosure; (2) mitigate, to the extent practicable, any harmful effect that is known to Business Associate of such use or disclosure. In addition, Business Associate shall report to Covered Entity any Breach of which it becomes aware within the time periods required under the HITECH Act.
- 12.4 Safeguards
Business Associate agrees to use appropriate safeguards to prevent any use or disclosure of the PHI other than as provided for by this Business Associates Agreement. Business Associate further agrees to implement appropriate administrative, physical and technical safeguards to reasonably and appropriately protect the confidentiality, integrity and availability of any Electronic Protected Health Information in accordance with the HIPAA Security Regulations.
- 12.5 Access
Upon receipt of a written request by Covered Entity, Business Associate shall, in the time and manner reasonably designated by Covered Entity, make PHI maintained in a Designated Record Set available to Covered Entity for so long as such information is maintained in the Designated Record Set. In the event any individual requests access to PHI directly from Business Associate, Business Associate shall forward such request to Covered Entity in the time and manner reasonably designated by Covered Entity. Any denials of access to the Protected Health Information requested shall be the responsibility of Covered Entity.
- 12.6 Amendment
Upon receipt of a written request by or on behalf of Covered Entity for the amendment of an individual's PHI or record contained in a Designated Record Set (for so long as the PHI is maintained in the Designated Record Set), Business Associate shall provide such information to Covered Entity for amendment and incorporate any such amendments in the PHI as required by 45 C.F.R. §164.526, in the time and manner reasonably designated by Covered Entity.
- 12.7 Audit
Business Associate agrees to make its internal practices, books and records, including policies and procedures and PHI, relating to the use and disclosure of PHI and the security of Electronic Protected Health Information, available to Covered Entity, or, at the request of Covered Entity, to the Secretary of Health and Human Services (the "Secretary of HHS") or any officer or employee of HHS to whom the Secretary of HHS has delegated such authority for the purposes of the Secretary of HHS determining Covered Entity's compliance with the HIPAA Privacy Regulations and the HIPAA Security Regulations. Such information shall be made available in a time and manner designated by Covered Entity or the Secretary of HHS.
- 12.8 Accounting
Business Associate agrees to document any disclosures of PHI and information related to such disclosure, as would be required for Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. §164.528. Upon receipt of written notice by or on behalf of Covered Entity to Business Associate that Covered Entity has received a request for an accounting of disclosures of PHI, Business Associate shall make available to Covered Entity, in the time and manner reasonably designated by Covered Entity, that information collected in accordance with this section to permit Covered Entity to respond to the request in accordance with 45 C.F.R. §164.528.
- 12.9 Obligations of Covered Entity
Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the HIPAA Privacy Regulations if done by Covered Entity or that is not otherwise expressly permitted under Sections 12.2 and 12.3 of this Agreement (Use and Disclosures and Specific Permitted Use and Disclosure).
- 12.10 Term and termination.
This Business Associates Agreement shall be effective as of the date of the acceptance of the Terms and Conditions and shall continue upon the earlier of termination of the Agreement above or termination of this Business Associates Agreement.
Notwithstanding any provision in the Agreement above to the contrary, upon Covered Entity's knowledge of a material breach by Business Associate, Covered Entity must take reasonable steps to have Business Associate cure the breach or end the violation. If Business Associate does not cure the breach or end the violation within the time period, then Covered Entity shall either immediately terminate this Business Associates Agreement (and applicable section of the Agreement above) upon written notice to Business Associate, or if termination is not feasible, Covered Entity has the right to report the breach to the Secretary of Health and Human Services.
Upon Business Associate's knowledge of a material breach by the Covered Entity, Business Associate must take reasonable steps to have Covered Entity cure the breach or end the violation. If Covered Entity does not cure the breach or end the violation within the time period, then Business Associate shall either immediately terminate this Business Associates Agreement (and applicable section of the Agreement above) upon written notice to Covered Entity, or if termination is not feasible, Business Associate has the right to report the breach to the Secretary of Health and Human Services.
- 12.11 Obligations upon Termination
Except as provided below, upon termination of this Business Associates Agreement for any reason, Business Associate shall return or destroy all PHI in its possession, or in the possession of subcontractors or agents of Business Associate. Business Associate shall retain no copies of PHI. In the event that the parties determine that returning or destroying the PHI is not feasible, Business Associate shall extend the protections of this Business Associates Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction not feasible, for so long as Business Associate maintains such PHI.
- 12.12 Miscellaneous
- Regulatory References. A reference in this Agreement to a section in HIPAA, the HIPAA Privacy Regulations or the HIPAA Security Regulations, or the HITECH Standards means the section in effect or as amended.
- Amendment. The parties agree to take such action as is necessary to amend this Business Associates Agreement as is necessary for Covered Entity to comply with the requirements of the HIPAA Regulations.
- Survival. The respective rights and obligations of Patient Activator under Sections 12.6, 12.7, 12.8, 12.9 and 12.11 of this Business Associates Agreement shall survive the termination of this Business Associates Agreement.
- Interpretation. Any ambiguity in this Business Associates Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with the HIPAA Regulations.
- No Third Party Beneficiaries. Except as expressly provided for in the Privacy Rule, there are no third party beneficiaries to this Business Associates Agreement. Business Associate’s obligations are to Covered Entity only.
- Complete Integration. This Business Associates Agreement, along with applicable provision in the Agreement for Services above, constitute the entire agreement between the parties and supersedes all prior negotiations, discussions, representations or proposals, whether oral or written, unless expressly incorporated herein, related to the subject matter of this Business Associates Agreement. If any provision or part thereof is found to be invalid, the remaining provisions shall remain in full force and effect.