TERMS OF USE
These Terms of Use
govern any use of the ABL websites, including, without limitation, all content
such as text, information, images, and audio (collectively, Content) and all
services (Services) made available through the TherapyEdge Web site (this
site and the Content and Services are collectively referred to herein as the
Site).
These Terms of Use
constitute a legally binding agreement (Agreement) between ABL, SA. (ABL,
we, us, or our) and the individual user or group/practice entity
(Customer, you or your) using the Site, unless you have signed a separate
agreement with ABL regarding your use of the Site, in which case the terms of
the separate agreement shall govern. By clicking on the "I Agree" button
via the on-line registration process, or by otherwise accessing, using or
browsing the Site, you acknowledge that you have read, understand and agree to
be bound by these Terms of Use and to comply with applicable laws and
regulations including, without limitation, United States export and re-export
control laws and regulations.
ACCESS.
Your use of the Site is subject to your timely payment of subscription fees and
any related charges, in accordance with the procedures identified in your
license agreement. As we add access to additional or improved services to
our Site, we may require you to provide us or third parties with additional
information, or to accept additional terms and conditions prior to enrolling in
or using such services. The Site will be accessible only by your
authorized personnel identified in writing to ABL, in accordance with ABL's site administration procedures. You are
responsible for the acts or omissions by your personnel and their use of the
Site, and for any damages incurred by you as a result thereof.
CONFIDENTIALITY
OF PATIENT INFORMATION.
The Services provided through the
Site enable you to store, access, transmit and receive medical, demographic and
related information concerning your patients (Patient Information). ABL
agrees to take all steps reasonably necessary, consistent with our Privacy
and Security Policy for the Site, to maintain Patient Information in
the strictest confidence and to prevent the disclosure of such information to
third parties except in connection with the transmission, storage, retrieval,
and disclosure of such information on your behalf and except as may be required
or permitted by law. We reserve the right, in accordance with our Privacy
and Security Policy for the Site, to use and disclose data from
which information that could be used to identify an individual (such as names,
social security numbers, and addresses) has been removed as required by
applicable law. Please read our Privacy and Security Policy
for the Site (as the same may be amended or supplemented from time to time)
carefully to ensure that you understand and agree to how we collect, use and
protect information collected about you and your patients through the
Site.
LEGAL COMPLIANCE.
State and Federal laws, as well as ethical and licensure requirements of your
profession may impose obligations with respect to patient confidentiality that
may limit the ability of physicians, health care providers, and persons acting
on their behalf, to make use of certain Services or to transmit certain
information to third parties. You agree that ABL, our licensors, and all other
persons or entities involved in the operation of Services provided through the
Site, have the right to monitor, retrieve, store, transmit, receive and use
Patient Information in connection with the operation of such Services, and are
acting on your behalf in storing, retrieving, receiving and transmitting
Patient Information. You are, at all times during the term of this
Agreement and thereafter, solely responsible for obtaining and maintaining all
patient consents and all other legally necessary consents or permissions
required or advisable to disclose, process, retrieve, transmit, and view the
Patient Information you transmit, store, or receive in connection with the Site
and the Services. WE CANNOT AND DO NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE
OR MISUSE OF PATIENT INFORMATION OR OTHER INFORMATION MONITORED, STORED,
RETRIEVED, TRANSMITTED OR RECEIVED USING THE SITE OR THE SERVICES. ABL
is only a service provider, and neither ABL nor the Site is a system of
record.
PRODUCT
REPRESENTATIONS AND WARRANTIES. ABL represents and warrants to
Customer that:
1. ABL will use appropriate
technological and operational safeguards to protect the confidentiality of
Patient Information and to reduce the risk of loss of Patient Information.
These safeguards include encryption of electronically transmitted healthcare
information, message and entity authentication, audit trails, emergency back up
systems containing secure data, firewalls, anti-virus implementation and
checks, and administrative security training and access limiting protocols.
2. ABL will routinely review
and update its technological and operational safeguards for compliance with
applicable laws and regulations.
3. ABL will execute Chain of
Trust partner agreements with all third parties who may share, transmit, or
process healthcare information and data electronically and will document and
update its procedures periodically.
ABL's entire liability and Customer's exclusive remedy for
breach of the foregoing warranties shall be, at ABL's
option, either (a) cessation of use of the Site, and refund of all Customer Fees
paid by Customer (minus the amount of Customer Fees for any period in which the
Site worked properly); or (b) repair or replacement of the Site with a release
upgrade by ABL. This limited warranty is void if failure of the above
services has resulted from abuse, misapplication, intentional or other acts
that reasonably would likely result in failure of the Site performance in any
manner caused by Customer, Customer's employees, agents or representatives.
CUSTOMER REPRESENTATIONS AND
WARRANTIES.
Customer represents and warrants to ABL that:
1. Customer has the right to
grant to ABL the rights and licenses granted in this Agreement on behalf of
itself and any healthcare professional who treated the patient
and created or submitted the Patient Information or other similar healthcare
information;
2. Customer will use
appropriate measures to protect the security and confidentiality of the Patient
Information (for example, by protecting passwords used to access Patient
Information and by employing physical security measures for any computers that
contain Patient Information);
3. Customer has obtained any
required authorization from patients for the release and disclosure of the
Patient Information and any related information, subject to the terms of this
Agreement;
4. Only authorized personnel
and representatives required to have access and who agree to be bound by this
Agreement will have access to the Patient Information and related healthcare
information; and
5. The transmission, storage
and display of Patient Information and related healthcare information pursuant
to the terms of this Agreement shall not violate any law, judgment, order,
injunction, decree, rule, regulation or ruling.
SECURITY.
The Site is intended by ABL to require a userID and
password to access and use. Certain Services may require additional codes
and/or authentication procedures. You are solely responsible for (1)
maintaining the strict confidentiality of the userIDs,
passwords and codes (collectively, IDs) assigned to you and your personnel,
(2) instructing your personnel to not allow another person to use their IDs to
access the Site, (3) ensuring that only properly trained and duly authorized
Users are given access to the Site, (4) any charges, damages, or losses that
may be incurred or suffered as a result of you or your personnels failure to
maintain the strict confidentiality of their IDs, and (5) promptly informing us
in writing of any need to deactivate an ID due to security concerns. ABL is not
liable for any harm related to the theft of your IDs, your disclosure of your
IDs, or your authorization to allow another person or entity to access and use
the Site using your IDs. You agree to immediately notify ABL of any
unauthorized use of your IDs.
LIMITATIONS ON USE. The
Content and Services available through the Site are the property of ABL or its
licensees and are protected by worldwide copyright and other intellectual
property laws. Content and Services received through the Site may be displayed,
reformatted and printed only for limited, non-commercial use by you and your
authorized personnel, provided that the copyright and other intellectual
property notices appear in all copies. You agree not to reproduce, retransmit,
distribute, disseminate, sell, publish, broadcast or circulate the information
received through the Site to anyone other than your authorized personnel. Under
no circumstances may the name of ABL be used in any advertising or publicity
without the express prior written permission of ABL.
All trademarks, service marks, trade names,
trade dress and product names whether or not appearing on this website are
protected in the United States and internationally, and they may not be used
without the express prior written permission of ABL, except to identify the
products or services of ABL. The following trademarks: TherapyEdgeTM,
TherapyEdgeTM, TETM, HIV-TETM, Therapy ExpertTM, LogiCare, ViroScorer,
HIVRes, are trademarks of ABL, SA. or its affiliates. Various aspects of the Site and its
Services are subject to U.S.
and International patents and patents pending, including U.S. Patents Nos.
6081786, 6188988, and 09/523532. Please contact ABL for further details.
Nothing herein shall be construed as conferring
any license or right under any ABL patent, copyright, trademark or other
intellectual property right. ABL will aggressively enforce its
intellectual property rights on this website and its contents, to the fullest
extent of the law.
NO MEDICAL ADVICE.
The Content and Services available
through the Site are intended for informational and educational purposes only
and are not a substitute for the professional judgment of the health care
professional in diagnosing and treating patients. ABL does not practice
medicine, give medical advice or provide medical or diagnostic services, nor
does ABL endorse drugs or recommend therapy. In particular (and without
limiting the generality of the foregoing), you expressly acknowledge your
understanding that the listing and relative ranking of therapeutic options on
the Sites "ViroScorer" and Therapy
Evaluation pages represents only the level by which the patient
characteristics input by you or on your behalf match the information in our
database gathered from numerous sources, and is not an indication by ABL of the
success of any regimen if prescribed for any particular patient. You expressly acknowledge and agree that ABL is not
responsible for the results of your decisions resulting from the use of the Site,
including, but not limited to, your choosing or not
choosing a specific treatment based on the Content or Services.
You shall ensure that all your personnel to whom you permit access to the
Site are aware of the limitations of the use of the Site.
MEDICAL INFORMATION DISCLAIMER. Every effort has been made to ensure that the
Content and any other information provided in the Service is
accurate, up-to-date, and complete, but no guarantee is made to that
effect. The absence of a warning for a given drug or drug combination in
no way should be construed to indicate that the drug or drug combination is
safe, effective or appropriate for any given patient. Your reliance upon
Content or Services obtained by you at or through the Site is solely at your own
risk. You shall ensure that all your personnel to whom you permit access
to the Site are aware of the limitations of the use of the Site.
DISCLAIMER
OF WARRANTIES. THE SITE, THE SERVICES AND THE CONTENT ARE
PROVIDED TO YOU ON AN AS IS BASIS, AND YOUR USE THEREOF IS AT YOUR OWN
RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT,
OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO
REPRESENTATION OR WARRANTY THAT ANY CONTENT IS ACCURATE, COMPLETE, APPROPRIATE,
RELIABLE, OR TIMELY. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITE WILL BE UNINTERRUPTED OR
ERROR-FREE, OR THAT IT IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL
COMPONENTS. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE
NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD
THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE. Some jurisdictions do not
permit the exclusion or limitation of implied warranties. Therefore, only if
required by applicable law, some or all of the exclusions or limitations above
may not apply to you. You may have other rights from jurisdiction to
jurisdiction.
EXCLUSION
OF DAMAGES. YOU UNDERSTAND THAT NEITHER US NOR ANY OF OUR
LICENSEES OR SUPPLIERS SHALL BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR
ANY LOSS, INJURY OR DAMAGE AS A RESULT OF YOUR USE OR MISUSE OF THE SITE OR ANY
CONTENT, SERVICE OR INFORMATION AVAILABLE OR NOT AVAILABLE THROUGH IT. IN NO
EVENT SHALL ABL, ITS LICENSORS, ITS SUPPLIERS OR ANY THIRD PARTIES MENTIONED ON
THE SITE SHALL BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, ANY SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES, DAMAGES RESULTING FROM LOST RECORDS OR DATA,
INTERRUPTION, DOWNTIME, INCORRECT LINKAGE, DELAY, INACCURACY OR OTHER NONPERFORMANCES,
ANY DAMAGES RELATING TO YOUR USE OR RELIANCE UPON THE SITE OR THE CONTENT,
SERVICES OR OTHER INFORMATION CONTAINED THEREIN OR WITH REGARD TO ANY ERRORS,
INACCURACIES, OMISSIONS, DEFECTS, NON-TIMELINESS, SECURITY BREACHES, OR ANY
OTHER FAILURE TO PERFORM BY ABL OR ITS LICENSORS OR SUPPLIERS). THIS LIMITATION
OF DAMAGES SHALL APPLY REGARDLESS OF WHETHER YOU OR ANYONE ELSE HAS ADVISED ABL
OF THE POSSIBILITY OF SUCH DAMAGES. Applicable law may not allow certain
limitation of liabilities, so one or more of the above limitations may not
apply to you.
LIMITATION
OF LIABILITY. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS
AGREEMENT, WE SHOULD HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS,
HARM OR DAMAGE, YOU AND WE AGREE THAT SUCH LIABILITY SHALL UNDER NO
CIRCUMSTANCES EXCEED THE GREATER OF $1,500 OR THE FEES YOU OR YOUR EMPLOYER
PAID US DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR
OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM. YOU AND WE AGREE THAT THE
FOREGOING LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK BETWEEN YOU
AND US AND REFLECTS THE FEES, IF ANY, WE CHARGE YOU TO USE THE SITE. YOU
ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE
WOULD NOT PROVIDE THE SITE TO YOU.
INDEMNIFICATION.
ABL shall defend, indemnify and hold harmless Customer, its directors,
officers, agents, and employees from and against any claim arising from the
disclosure of Patient Information by ABL to unauthorized persons or in
violation of applicable law or regulation, excluding any claims arising from
disclosures of Patient Information made at your direction or on your behalf.
You agree to indemnify and
hold harmless ABL and ABL licensees and suppliers, and ABL employees,
representatives, agents, subsidiaries and affiliates, against any and all
claims, suits, actions or other proceedings brought against ABL made by any
third party due to, or arising out of, your or your personnels use of the Site
and any information or Content available through it, including any of the
Services, your or your personnels violation of this Agreement, any errors or
inaccuracies contained in the Patient Information as delivered by or on behalf
of Customer to ABL that result in harm to Customers patients, any medical treatment,
diagnosis or prescription rendered by you or your agents, or any infringement
by you or any other user of your account of any intellectual property rights or
the civil and legal rights of any person or entity. You agree to pay any and
all costs, damages and expenses, including, but not limited to, reasonable
attorney's fees and costs awarded against or otherwise incurred by us in
connection with or arising from any such claim, suit, action or proceeding
TERM AND
TERMINATION. This Agreement shall remain in effect according to the
terms of your license agreement and subject to your payment of all applicable
fees for Services and your compliance with all other terms and conditions
herein. Either party may terminate this Agreement immediately in the event
of default by the other party. Either party may terminate this Agreement for
convenience at any time upon thirty (30) days written notice to the other
party. Upon any expiration or termination of this Agreement, you shall
immediately discontinue the use of the Site, including all Services and
Content, and ABL shall promptly return or destroy all Patient Information,
including such information in possession of ABL's
subcontractors, if feasible to do so. If return or destruction of said
Patient Information is not feasible, ABL agrees to extend any and all
protections, limitations and restrictions contained in this Agreement to ABL's use and/or disclosure of any Patient Information
retained after the termination of this Agreement, and to limit any further uses
and/or disclosures to the purposes that make return or destruction of the
Patient Information infeasible.
The paragraphs of this
Agreement entitled CONFIDENTIALITY OF PATIENT INFORMATION, LEGAL
COMPLIANCE, LIMITATIONS ON USE, NO MEDICAL ADVICE, MEDICAL INFORMATION
DISCLAIMER, DISCLAIMER OF WARRANTIES, EXCLUSION OF DAMAGES, LIMITATION OF
LIABILITY, INDEMNIFICATION, TERM AND TERMINATION, U.S. GOVERNMENT END
USERS, and MISCELLANEOUS shall survive the expiration or termination of this
Agreement for any reason whatsoever.
U.S. GOVERNMENT END USERS. The Site includes software that is Commercial
Computer Software provided with RESTRICTED RIGHTS under Federal Acquisition
Regulations and agency supplements to them. Use, duplication or
disclosure by the U.S. Government is subject to restrictions as set forth in
this Agreement and in the Rights in Commercial Computer Software or Commercial
Computer Software Documentation clause at DFAR 227.7202-3 or subparagraphs
(c)(1) and (2) of the Commercial Computer Software Restricted Rights clause at
FAR 52.227-19, as applicable.
EXPORT. Customer
may not use or otherwise export or reexport
the Site or Services, the related software or applications or any underlying
information or technology of the Site except in full compliance with all United States
and other applicable laws and regulations. By subscribing to or using the
Site, Customer is agreeing to the foregoing and is representing and warranting
that Customer is not located in, under the control of, or a national resident
of any country to which the U.S. has embargoed goods or on any U.S. Treasury
Department's list of Specially Designated Nationals or the U.S. Commerce
Department's Table of Denial Orders.
MISCELLANEOUS. This
Agreement, including our Privacy and Security Policy
for the Site, contains the entire agreement between you and ABL relating to the
subject matter hereof, and supersedes any other oral or written communications
relating thereto. This Agreement may not be amended or supplemented by (1) any
purchase order or similar form originated by you relating to the subject matter
hereof, or (2) statements of any of ABL employees.
ABL may assign this Agreement, in whole or in part, in
ABL sole discretion. You may not assign your rights under this Agreement without ABL
prior written permission. Any attempt by you to assign your rights under
this Agreement without ABL permission shall be void. The waiver by ABL of a
breach of any provision of this Agreement shall not operate or be construed as
a waiver of any other or a subsequent breach of the same or a different kind.
If any provision of this Agreement shall be held by a court of competent
jurisdiction to be contrary to law, the remaining provisions of this Agreement
shall remain in full force and effect.
This
Agreement shall be governed by the laws of the Grand Duchy of Luxembourg,
without giving effect to any principles of conflicts of law. You expressly
agree that exclusive jurisdiction for any dispute with us, or in any way
relating to your access or use of the Site, resides in the courts of the Grand
Duchy of Luxembourg and you further agree and expressly consent to the
exercise of personal jurisdiction in the courts of the Grand Duchy of
Luxembourg in connection with any such dispute including any claim
involving us or agents, employees, contractors, officers, directors,
telecommunication providers and content providers.
This
Agreement will not be governed by the United Nations Convention of Contracts
for the International Sale of Goods, the application of which is hereby
expressly excluded. If any applicable law requires Customer to obtain
technology for import rights and complete certain registration requirements in
order for this Agreement to be enforceable under such law, Customer hereby
represents that Customer has duly obtained and maintains valid technology
import rights, and that Customer has duly completed or will duly complete the
registration formalities required by such law.
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