Revised: 6/12/19
Terms of Service Agreement
These Terms of Service constitute an agreement (this “Agreement”) by and between Gosimer, a corporation whose principal place of business is 106 Calendar Ave #214, La Grange, IL 60525 (“Vendor”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the earlier of the date Customer pays the invoice or clicks “Accepted” (the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s System are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “AUP” means Vendor’s acceptable use policy currently posted at www.gosimer.com/aup.
1.2. “Customer Data” means data in electronic form input or collected through the System by, from, or for Customer, including without limitation by, from or for Customer’s Users.
1.3. “Documentation” means Vendor’s standard manual and other references related to use of the System.
1.4. “Term Sheet” means an order for access to the System including a number of user cases authorized to reside in the System and a Subscription Fee, as defined in Section 3, and may include a period as set forth in Section 10.1.
1.5. “Privacy Policy” means Vendor’s privacy policy, currently posted at www.gosimer.com/privacy.
1.6. “System” means Vendor’s Gosimer Legal or Gosimer Health.
1.7. “SLA” means Vendor’s service level agreement.
1.8. “Term” is defined in Section 10.1 below.
1.9. “User” means any individual who uses the System in association with Customer, or any individual who accesses the System through Customer’s account or passwords, whether authorized or not.
2. THE SYSTEM.
2.1. Use of the System. During the Term, Customer may access and use the System pursuant to: (a) the terms of any outstanding Term Sheet, including such features and functions as the Term Sheet requires; and (b) Vendor’s policies posted on its Website at www.Gosimer.com, including but not limited to the AUP and Privacy Policy, as such policies may be updated from time to time.
2.2. Record Requests and Record Publishing for Gosimer Legal:. Customer agrees that Customer is using the System to obtain health records related to Customer’s clients, who are Users. Once Customer’s client is enrolled in the System, thereby consuming a case for Term Sheets including a “per case” Subscription Fee, the System will generate a record request for the client. The System will publish any records received in response to a record request to the Customer’s account.
(a) No Expectation of Production. Customer agrees that it has no expectation that a record request for a client will result in the System receiving a responsive record at all, or that responsive records will be received in any particular time period. Customer agrees that a case is consumed for purposes of a “per case” Subscription Fee when a Customer’s client is enrolled in the system, and is not dependent on the receipt of any responsive records.
(b) No Expectation of Timing. Customer acknowledges that the System retrieves responsive health records for Customer’s client users from third party health care providers who control the content of any responsive records, and the timing of their completion and/or release. Customer acknowledges that Gosimer does not guarantee or warrant that the System can obtain responsive health records within any specific time period or that the System can obtain a responsive record at all. Gosimer, through the System, will use reasonable efforts to obtain responsive records for Customer’s client users and to publish those responsive records within a reasonable time of their receipt.
(c) No Reliance on Prior or Contemporaneous Performance Statements. Consistent with Section 11.12 of this Agreement, Customer agrees that Customer is not relying on any representations, statements, marketing materials or any other communications of any type describing the performance of Gosimer or the System when entering this agreement.
2.3. Third Party Services . Vendor’s System utilizes third party services to provide certain System functions. Customer accepts that the System as a whole, or select System functions are dependent on the operation of the third party services. Customer accepts that the System as a whole, or specific system functions may be unavailable when a third party service suffers a service interruption. Vendor will make reasonable efforts to maintain the System’s functionality, including individual functions, but Customer accepts that Vendor does not warrant, represent, or guarantee the System or its individual functions will be available at any given time. Vendor, at Vendor’s sole discretion, may issue cases to Customer’s account, credits to Customer’s outstanding or future invoices, or a combination of the two. Customer understands that such cases and credits have no cash value, are non-transferable, and are void upon termination of this Agreement. Customer understands that such cases or credits given at Vendor’s sole discretion is Customer’s sole remedy for any failure of the availability of the System. Vendor is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation, after termination of this Agreement.
2.4. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Customer’s or Users’ use of the System.
2.5. System Revisions. Vendor may revise System features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided pursuant to a Term Sheet, Customer may within 30 days of notice of the revision terminate such Term Sheet, without cause, or terminate this Agreement without cause if such Term Sheet is the only one outstanding. If any such revision to the SLA materially reduces service levels provided pursuant to an outstanding Term Sheet, the revisions will not go into effect with respect to such Term Sheet until the start of the Term beginning 45 or more days after Vendor posts the revision and so informs Customer.
3. SYSTEM FEES. Customer will pay Vendor the fee set forth in each Term Sheet (the “Subscription Fee”.) The Subscription Fee can be calculated on a “per case” basis or on a “time period” basis, i.e., a fee for the Term, which may be paid in installments when indicated in the Term Sheet. The Subscription Fee is exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT.) Vendor will not be required to refund the Subscription Fee under any circumstances.
4. CUSTOMER DATA & PRIVACY.
4.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) will not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) will not intentionally grant any third party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
4.2. Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to the System or recommended or referred to through the System or by Vendor’s staff.
4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.4. Data Accuracy. Vendor will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users, or at the direction of Users.
4.5. Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
4.6. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer will comply with the AUP. Customer will not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Vendor may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor the AUP requires that Vendor take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Vendor is free to take any such action it sees fit.
5.2. Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer will notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the System, Customer will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4. Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
6.2. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)
7. REPRESENTATIONS & WARRANTIES.
7.1. From Vendor. Vendor represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Vendor. In the event of a breach of the warranty in this Section 8.1, Vendor, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the System.
7.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
7.3. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
8. INDEMNIFICATION. Customer will defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own user customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Article 8 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
9. LIMITATION OF LIABILITY.
9.1. Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE LESSER OF THE PRORATA MONTHLY SUBSCRIPTION FEE FOR TIME TERMS, THE FEE FOR ONE CASE ON A “PER CASE” TERM, , OR $500.00.
9.2. Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO ANY NEGOTIATIONS OR COMMUNICATIONS PRECEEDING THE AGREEMENT, REGARDLESS OF THE WHETHER THE DAMAGES ARE AVAILABLE BY STATUTE OR BY COMMON LAW..
9.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 9 apply likewise to Vendor’s Associates, licensors, suppliers, advertisers, sponsors, employees, consultants, and other representatives.
9.4. Agreement to Arbitrate. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the System any any issues of arbitrability (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a Vendor’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (“IP Protection Action”). Any arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et sec. and will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and will take place in Nashville, Tennessee. Customer agrees that the Gosimer and the System transmit, access, and present data through computer networks located nationwide, and therefore that performance of this Agreement affects interstate commerce. Each Party will be responsible for $500 in costs related to arbitration, and thereafter Customer will be responsible for payment of all additional costs associated with arbitration. Customer waives the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding related to the System of the Agreement. Further, the arbitrator may not consolidate more than one claim, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section will be deemed void. Except as provided in the preceding sentence, this Section will survive any termination of this Agreement.
10. Term & Termination.
10.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Term Sheet or, if no period is set forth therein, month to month for time based subscription fees. The term may alternatively be defined as a number of User cases Customer desires to use within the System, in which case, absent a longer period set forth in the Term Sheet, the Term expires one year after the case allotment is exhausted. In a term defined by a number of User cases, a case shall be consumed when a data profile is created for a User. After the expiration of a time based Term, the Term will renew for successive periods, until either party refuses such renewal by written notice 30 or more days before the renewal date, or Customer’s Subscription Fee is in arrears for 30 days.
10.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice. Such notice will specify in detail the nature of the breach and will be effective in 30 days, or more if specified in the notice, unless the other party first cures the breach.
10.3. Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the System and delete, destroy, or return all copies of the Documentation and Vendor’s confidential information in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7.3 (Warranty Disclaimers), 8 (Indemnification), and 9 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
11.MISCELLANEOUS.
11.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
11.2. Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to legal@gosimer.com, and such notices will be deemed received 72 hours after they are sent.
11.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
11.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 11.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
11.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
11.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
11.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the laws of the State of Illinois, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Cook County, Illinois. This Section 11.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims, except for issues of arbitrability, which, as set forth in Section 9.4, shall be governed by the Federal Arbitration Act as interpreted by Federal Courts.
11.8. Conflicts. In the event of any conflict between this Agreement and any Vendor policy posted online, including without limitation the AUP or Privacy Policy, the terms of this Agreement will govern.
11.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
11.10. Execution. This Agreement may be executed in one or more counterparts, or by use of the System by Customer, including but not limited to logging into the System access portal, creating profiles for Users, or accessing any record. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
11.11. Technology Export. Customer will not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
11.12. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications to induce them to enter this agreement.
11.13. Amendment. Vendor may amend this Agreement from time to time by posting an amended version at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives Vendor written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this Agreement pursuant to Article 10, Term & Termination). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section, Vendor may revise the Privacy Policy and Acceptable Use Policy at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted.
