between Unwritten Media Inc. d/b/a MHPToolbox.com (“we” or “MHPToolbox“) and the customer who orders MHPToolbox.com services (“you” or “Customer“).
Your use of MHPToolbox.com services is governed by these Terms of Service, and the terms of your Order. When we use the term “Agreement” in any of the Order, or Terms of Service, we are referring collectively to all of them. These Terms of Service state the general terms applicable to all Web Based Services. If the individual who submits an Order does so on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement. This Agreement is the complete and exclusive agreement between you and MHPToolbox regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
Contingent on MHPToolbox’s acceptance of your Order, and subject to these Terms of Service, MHPToolbox agrees to provide the Services. MHPToolbox agrees to follow the best security procedures available that are in accordance with at least any PCI, HIPAA, and HITECH guidelines, in MHPToolbox reasonable judgment.
You agree to do each of the following: (i) comply with applicable law and the MHPToolbox Acceptable Use Policy (ii) pay when due the fees for the Services, (iii) use reasonable security precautions in light of your use of the Services, (iv) cooperate with MHPToolbox’s reasonable investigation of issues, security problems, and any suspected breach of the Agreement, (v) keep your billing information and other account information up to date; and (vi) immediately notify MHPToolbox of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, MHPToolbox’s reasonable determination shall control.
You may access the Services via the online portal, or via a MHPToolbox-provided Application Programming Interface or API. MHPToolbox may modify its control panel or APIs at any time, or may transition to new API’s. Your use of any API you download from the MHPToolbox website is governed by the license terms included with the code in the file named “COPYING” or “LICENSE” or like caption.
The initial term for each Order begins on the date we make the Services available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow MHPToolbox’s non-renewal process accessible from the service’s portal to give an effective notice of non-renewal.
Any additions/removal of counselors, or changes in service level will provide a notice of cost change. To continue using the services you agree that you will pay any difference in cost.
MHPToolbox will charge you the fees stated in your Order. If you have made a minimum commitment in your Order, and your actual usage does not meet or exceed the minimum commitment, MHPToolbox will charge you the difference between your minimum commitment and your actual usage. Unless you have made other arrangements, MHPToolbox will charge your credit card without invoice as follows: (i) for recurring fees, in advance, on or around the first day of each billing cycle, and (ii) for non-recurring fees (such as fees for initial set-up, overages, additional storage) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at MHPToolbox’s option; provided that MHPToolbox may wait to charge your credit card until the total aggregate fees due are at least $50. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that MHPToolbox first makes the Services available to you. If you are using MHPToolbox’s billing services, as described in the Billing Services Section below, MHPToolbox may at its option, either include the fees, charge backs, and other items described in Section 31 with your recurring or non-recurring fees, as applicable, or deduct them from your remittances.
MHPToolbox may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason. We will continue to securely store your data for a limited time to ensure that you do not loose your valuable data in the event of a billing issue, but we cannot guarantee this beyond 30 days of no payment.
MHPToolbox may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and MHPToolbox brings a legal action to collect, or engages a collection agency, you must also pay MHPToolbox’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any “credit” that we may owe you, such as a credit for failure to meet a service level guaranty, will be applied to fees due from you for services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide MHPToolbox with accurate factual information to help MHPToolbox determine if any tax is due with respect to the provision of the Services, and if MHPToolbox is required by law to collect taxes on the provision of the Services, you must pay MHPToolbox the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize MHPToolbox to obtain a credit report at any time during the term of the Agreement. Any credit that we may owe you, such as a credit for a SLA remedy, will be applied to unpaid fees for services or refunded to you, at our option.
If you are under a month-to-month contract, then we may increase fees at any time on forty-five (45) days advance written notice. If the initial term of your Agreement is longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins forty-five days from the day of our written notice of a fee increase. We may not increase your fees pursuant to this sentence more often than once per twelve months, and we must give you at least thirty days advance written notice of the increase.
We may suspend your Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect MHPToolbox or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
Under the terms of this section, we acknowledge that the records you enter into this system may include Electronic Health Records, and as such, we will make every effort to provide access to your records thru an alternate means if the first paragraph of this section is put into effect.
You may terminate the Agreement for convenience at any time on thirty days advance written notice. If you terminate the Agreement for convenience, in addition to other amounts you may owe, you must pay an early termination fee equal to any minimum monthly financial commitment you have made for the remaining portion of the then-current term.
We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your records out of MHPToolbox in an orderly fashion, (v) you use your Service in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
You will not have access to your data stored on the in MHPToolbox system during a suspension or following termination.
We backup the MHPToolbox systems on a continuous basis, as well as a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups may be slightly different from the latest data you entered on the system at the time of the backup. In addition, we may destroy all but the most recent backup. These backups will not be available to you directly, but will provide a method for us to restore service in the case of any equipment failure, natural disaster, or other data corruption.
If we detect any issues with your data, or you notify us of any data loss or corruption, we will use any means available on our production systems, or the backups to restore your valuable data.
MHPToolbox is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from MHPToolbox’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. MHPToolbox has no obligation to provide security other than as stated in this Agreement. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. If you have not made the minimum financial commitment for support, the Services are provided AS IS. Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS.
Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of this Agreement, or results from our gross negligence or willful misconduct. The dollar credits stated in the Service Level Agreement are your sole and exclusive remedy for unavailability of the Services.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from MHPToolbox’s negligence, the maximum aggregate monetary liability of MHPToolbox and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).
If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “MHPToolbox Indemnitees“) are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of these Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the MHPToolbox Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If your clients use the Services in conjunction with your account, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of the access to the Services that you provide to your customers. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
You may resell the Services to those in your practice, but you are responsible for use of the Services by any third party to the same extent as if you were using the Services yourself. Unless otherwise agreed, MHPToolbox will provide support only to you, not to any other person you authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order for your account that incorporates the revised AUP or General Terms, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate your Service because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.
Your routine communications regarding the Services should be sent to your MHPToolbox account team via email. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first-class United States mail to:
153o Homestead Pl
Garland, TX 75044
MHPToolbox’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier, except that MHPToolbox may give notice of an amendment to the AUP by posting the notice on the MHPToolbox.com website. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to the portal after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use the Services as a the primary contact in the event of a medical emergency, or as a Class III medical device under the Federal Food, Drug and Cosmetic Act.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by MHPToolbox during the performance of the Services shall belong to MHPToolbox unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
You may not assign the Agreement without MHPToolbox’s prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. MHPToolbox may use third party service providers to perform all or any part of the Services, but MHPToolbox remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if MHPToolbox performed the Services itself.
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement is governed by the laws of the State of Texas, exclusive of any Texas choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Dallas County or Collin County, Texas, and we each agree not to bring an action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. You agree that you will not bring or participate in any class action lawsuit against MHPToolbox or any of its employees or affiliates. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
These Terms of Service may have been incorporated in your Order by reference to this page on the MHPToolbox website. Although we may from time to time revise the Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision, and your Order will continue to be governed by the Terms of Service posted on the effective date of the Order. However, any amended Terms of Service will become effective on the first day of the renewal period that follows the date that the new Terms of Service were posted by at least thirty days. In addition, if over time you sign multiple Orders for a single account, then the Terms of Service incorporated in the latest Order posted on the effective date of the latest Order will govern the entire account. MHPToolbox may accept or reject any Order you submit in its sole discretion. MHPToolbox’s provisioning of the Services described in an Order shall be MHPToolbox’s acceptance of the Order.
An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Terms of Service, the Acceptable Use Policy, and the Refund Policy. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.”
The following sections, and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
- DEFINED TERMS
- TERMINATION FOR CONVENIENCE; EARLY TERMINATION FEE
- CONFIDENTIAL INFORMATION
- LIMITATION ON DAMAGES
- OWNERSHIP OF INTELLECTUAL PROPERTY
- GOVERNING LAW, LAWSUITS
- SOME AGREEMENT MECHANICS
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
If you elect to participate in any beta test of a MHPToolbox Service (a “Beta Service“), then your use of the Beta Service is subject to the following terms:
- You acknowledge that the Beta Service is a pre-release version and may not work properly.
- You acknowledge that your use of the Beta Service may expose you to unusual risks of operational failures.
- You should not use the pre-release version of the Beta Service in a live production environment. You must not use the Beta Service in any hazardous environments, life support, or weapons systems.
- We may terminate the Beta Service at any time, in our sole discretion.
- The commercially released version of the Beta Service may change substantially from the pre-release version, and programs that use or run with the pre-release version may not work with the commercial release or subsequent releases.
- You are not entitled to any service level credits under our service level guaranties for downtime or other problems that may result from your testing.
- During the beta test we will provide support for your use of the service only during our normal business hours – 8:00 a.m. – 5:00 p.m. Central Time.
- You agree to provide prompt feedback regarding your experience with the Beta Service in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You agree that we may use your feed back for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your testing of the service shall be owned exclusively by MHPToolbox.
- You agree that all information regarding your beta test, including your experience with and opinions regarding the Beta Service, is “Confidential Information” of MHPToolbox, as defined in these Terms of Service, and may not be disclosed to a third party or used for any purpose other than providing feedback to MHPToolbox.
- The Beta Service is provided “AS IS” with no warranty whatsoever.
- To the extent permitted by applicable law, MHPToolbox disclaims any and all warranties with respect to the Beta Service including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
- The maximum aggregate liability of MHPToolbox and any of its employees, agents, affiliates, or suppliers, under any theory of law (including breach of contract, tort, strict liability, and infringement) for harm to you arising from your use of the Beta Service shall be a payment of money not to exceed Five Hundred Dollars ($500.00).
©2011 MHPToolbox.com (a division of Unwritten Media Inc)
September 14, 2011