SECURE MESSAGING TERMS OF SERVICE AGREEMENT
THE FOLLOWING TERMS OF SERVICE, AND ANY AND ALL OTHER POLICIES OR PROCEDURES RELATED TO THE USE OF THE SECURE MESSAGING SERVICE (“SERVICE”), AS UPDATED FROM TIME TO TIME, CONSTITUTE A BINDING LEGAL AGREEMENT (COLLECTIVELY, THIS “AGREEMENT”) ENTERED INTO BETWEEN YOU (“YOU” OR “YOURS”) AND MH SUB I, LLC AND ITS AFFILIATES (“COMPANY”).
BY CLICKING “SIGNUP”, OR BY OTHERWISE SIGNING UP FOR AN ACCOUNT, OR BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, THEN YOU MUST CEASE ACCESS AND USE OF THE SERVICE IMMEDIATELY.
The Service is available as a free service with a limited number of features as specified on your registration form (“Registration Form”). Additional services are included as part of a paid service.
2. LICENSE GRANT.
Company hereby grants You a limited, non-transferable, non-sublicensable, nonexclusive license to use the Service, solely for communicating with other users of the Service. All rights not expressly granted are reserved by Company.
You are responsible for all activity occurring under Your account. You are responsible for maintaining the confidentiality of your account including login information used in conjunction with the Service. You shall abide by all applicable laws and regulations in connection with your use of the Service, including those related to data privacy, including but not limited to the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act (collectively referred to herein as “HIPAA”). The Service may not be used in any way that is illegal, promotes illegal activities, or in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory or is otherwise indecent. You shall not shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity, bandwidth or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) use the Service, including the content, intellectual property, technology, trademarks or service marks for any commercial purposes (i.e. soliciting customers, resale, etc.) without Company’s prior written consent.
4. YOUR CONTENT.
You will have sole responsibility for all data, information, content and other materials (“Content”) provided, submitted, transmitted, posted, or made available by You through Your use of the Service. You agree to assume all liability related to the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of or right to use any and all Content. You represent and warrant that you have all necessary right, title, interest and consent necessary to allow Company to use all Content as set forth in this Agreement and as otherwise necessary to provide the Services under this Agreement, and You grant to Company all necessary rights and licenses in and to all Content necessary for Company to provide the Services under this Agreement. You understand that you are the transmitter of all Content, and Company is merely acting at your direction as a technology conduit for the transmission of the Content. Company shall have no obligation to retain the Content, and no responsibility for the Content, including, without limitation, deletion, damage, loss or failure to store any Content. With respect to Content that contains individually identifiable health information, You agree to comply with the provisions of HIPAA and the Business Associate Agreement between You and Company.
5. INTELLECTUAL PROPERTY RIGHTS.
Company, its successor or assigns, or its licensors, where applicable, shall own all right, title and interest, including all related intellectual property rights, in and to the Service, including all related technology and content (other than Content provided by You), and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating thereto. This Agreement does not convey to You any rights of ownership in or related to the Service.
You represent and warrant that: (1) you have the legal right and authority to enter into this Agreement; (2) you have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement; (3) You will access and use the Service in compliance with the terms of this Agreement; (4) You have the legal right to send messages to recipients; (5) the Content and purpose of all messages are in compliance with all applicable laws, rules and regulations; and (6) Company’s use of the Content shall not violate the rights of any third party or any law, rule or regulation. Company makes no warranties of any kind, regarding any specific availability or time of access to the Service, or with respect to recovering any Content.
You agree to indemnify, defend, and hold harmless Company, its respective affiliates, subsidiaries, licensors, employees, stockholders, officers, directors, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including reasonable attorneys’ fees and costs, damage awards, and settlement amounts) that result from or relate to any claim or allegation against any Indemnified Party arising from your breach of any representation and warranty set forth in this Agreement, or you accessing or using the Service provided under this Agreement or from any message or other communication generated or sent through such Service or any Content contained therein, whether or not in breach of this Agreement.
8. DISCLAIMER OF WARRANTIES.
COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. COMPANY DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COMPANY. FURTHER, NO ADVICE OR INFORMATION GIVEN BY A COMPANY REPRESENTATIVE SHALL CREATE A WARRANTY OR SERVE AS AN AMENDMENT TO THIS AGREEMENT. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
9. LIMITATION ON LIABILITY.
IN NO EVENT SHALL EITHER COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THIS AGREEMENT OR WHETHER DIRECT OR INDIRECT, INCLUDING BUT NOT LIMITED TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, AND (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY’S LIABILITY HEREUNDER WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID FOR THE SERVICE PURSUANT TO THE AGREEMENT WITHIN THE TWELVE MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE.
The Service is provided to You for free. You may stop using the Service at any time. Notwithstanding anything to the contrary contained herein, Company may terminate this Agreement and the Service at any time and for any reason. This Agreement shall commence on the date of availability of the Service and will remain in effect until terminated by either Party. If either party is in material breach of this Agreement, the other party is entitled to terminate this Agreement for cause after having given the breaching party a written notice of no less than thirty (30) days, if the breaching party has not remedied the breach to the satisfaction of the other party. The rights and obligations in Sections 7, 8, 9, 12-19 shall stay in full force and effect after termination of this Agreement.
11. ENTIRE AGREEMENT.
This Agreement, with any Registration Form and the Business Associate Agreement, constitutes the entire agreement between You and Company with regard to the subject matter hereof. The terms and conditions of this Agreement will supersede any prior agreement or any other communications relating to the use of the Services or any portion thereof.
If any provision herein is otherwise held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
13. GOVERNING LAW.
The validity, interpretation, and performance of this Agreement will be controlled by and construed under the laws of the State of California without regard to the choice of law provisions of any jurisdiction. The Parties agree to submit to the exclusive jurisdiction of the courts located in the State of California, County of Los Angeles for any action arising under this Agreement, and waive the right to challenge the jurisdiction of such courts on grounds of lack of personal jurisdiction or forum non conveniens or to otherwise seek a change of venue. The aforementioned choice of venue is intended by the parties to be mandatory, and not permissive, in nature. Each party hereby irrevocably waives the right to a trial by jury in any action relating to or arising out of this Agreement.
14. CLASS ACTION WAIVER.
ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT, YOU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS AND THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
You shall not have the right to assign, transfer, or sublicense any obligations or benefit under this Agreement without the prior written consent of Company.
Unless otherwise stated, all notices required under this Agreement will be in writing and will be considered given (i) immediately, when sent by email, or (ii) upon delivery when sent certified mail, return receipt requested, or via a nationally recognized commercial overnight carrier, fees prepaid. Company reserves the right to send You notices by email only, and such notice is hereby deemed sufficient with respect to any matter for which notice is required under the Agreement. You may send notices to Company by email or by paper mail using the contact information immediately below:
Internet Brands Inc.
909 N. Sepulveda Blvd., 11th floor
El Segundo, CA
Attn: Legal Department
You will send a copy of any such notice to Legal Department at firstname.lastname@example.org.
17. EXPORT RESTRICTIONS.
You agree to comply with any and all export control laws and regulations, whether administered by the United States government or otherwise. You agree that You will comply with such laws and regulations, and will not directly or indirectly export or re-export any Company products or services in violation of such laws and regulations.
No waiver of any condition or covenant contained in this Agreement or failure of Company to exercise a right or remedy will imply or constitute a waiver of the same right or remedy or any other condition, covenant, right or remedy contained herein. A waiver will not be effective unless it is in writing and signed by the party against whom the waiver is being enforced.
19. INDEPENDENT CONTRACTOR.
Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer or agent of the other party and shall not bind nor attempt to bind the other party to any contract.
Last Revised September 13, 2016.
HIPAA BUSINESS ASSOCIATE AGREEMENT
This HIPAA BUSINESS ASSOCIATE AGREEMENT (this “Agreement”) is entered into by and between MH Sub I, LLC and its affiliates (“Company”) and You for the purpose of compliance with the Health Insurance Portability and Accountability Act and its implementing administrative simplification regulations (45 CFR 160-164) (“HIPAA”) and Subtitle D of the Health Information Technology for Economic and Clinical Health Act (“HITECH”). This Agreement hereby amends and is incorporated into the Secure Messaging Terms of Service Agreement between Company and You; to the extent that the provisions of this Agreement conflict with those of an underlying agreement, the provisions of this Agreement shall control. Terms used but not otherwise defined herein shall have the same meaning as those terms defined in 45 CFR 160.103 and 164.501. This Agreement applies with respect to any and all Protected Health Information that may be collected, accessed, used, processed or disclosed pursuant to Company’s performance and Your receipt of services under the Secure Messaging Terms of Service Agreement.
Pursuant to HIPAA and the HITECH Act, Company may from time to time act as a business associate in the performance of Services for You under the Secure Messaging Terms of Service Agreement. In such event, You are a covered entity. Pursuant to this Agreement, Company and You agree to access, use, process, and disclose any such Protected Health Information (“PHI”) in compliance with the requirements of HIPAA and the HITECH Act.
By accepting the terms of the Secure Messaging Terms of Service Agreement or by using any service made available under the terms of the Secure Messaging Terms of Service Agreement, You accept the term and conditions of this Agreement. Please note that Company reserves the right, at its sole discretion, to change this Agreement from time to time. Your continued use of the services provided under the Secure Messaging Terms of Service Agreement after any such change takes effect will be deemed to constitute Your acceptance of and agreement to the revisions to this Agreement.
Capitalized terms not defined in this Agreement shall be defined as provided in HIPAA, the HITECH ACT and their implementing rules.
2. Uses and Disclosures of Protected Health Information.
2.1 Company may from time to time disclose Protected Health Information to You in conjunction with Your receipt of services under the Secure Messaging Terms of Service Agreement. For purposes of this Agreement, "Protected Health Information" is limited to Protected Health Information, as defined in HIPAA, HITECH and their implementing rules, that is accessed, used, processed or disclosed pursuant to the Secure Messaging Terms of Service Agreement.
2.2 Neither party shall access, use, process or disclose such Protected Health Information for any purpose other than as permitted under this Agreement. Each party may access, use, process and disclose the Protected Health Information it receives for the proper management and administration of such party, to perform its obligations under and receive the benefits of the Service delivered under the Secure Messaging Terms of Service Agreement and to otherwise carry out its legal responsibilities; provided, however, that in all cases such use is permitted under applicable law. Either party may disclose Protected Health Information if the disclosure is required by law. Either party may also disclose Protected Health Information for the proper management and administration of the business of such party, provided it obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as required by law and for the purpose for which it was disclosed.
2.3 Each party shall maintain appropriate safeguards including, but not limited to, administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the Protected Health Information.
2.4 If either party becomes aware of any unauthorized access to or use, processing or disclosure of unsecured Protected Health Information, it shall so notify the other party. Such notice shall contain: (i) the date of discovery of the unauthorized access, use, processing or disclosure; (ii) a listing of the identification of individuals and/or classes of individuals who are subject to the unauthorized access, use, processing or disclosure; and (iii) a general description of the nature of the unauthorized access, use, processing or disclosure. The party responsible for such unauthorized access, use, processing or disclosure shall perform an appropriate risk assessment to determine whether the Protected Health Information has been compromised. In performing the risk assessment, such party will consider a combination of factors such as: (a) the nature and extent of the Protected Health Information affected, (b) the unauthorized person who impermissibly used the Protected Health Information or to whom the Protected Health Information was impermissibly disclosed; (c) whether Protected Health Information was acquired or viewed and (d) the extent to which the risk to the Protected Health Information has been mitigated. The results of such risk assessment shall be provided to other party. Company is not responsible for monitoring Your own access to or use, processing or disclosure of Protected Health Information.
2.5 In the event of an unauthorized access to or use, processing or disclosure of unsecured Protected Health Information, the party responsible for such unauthorized access to or use, processing or disclosure of unsecured Protected Health Information will use reasonable efforts to mitigate, to the extent practicable, any harmful effect arising from such unauthorized access to or use, processing or disclosure of unsecured Protected Health Information.
2.6 The parties will cooperate with respect to any required notifications that must be made to the individuals or the media with respect to any unauthorized access to or use, processing or disclosure of unsecured Protected Health Information.
2.7 With respect to any Subcontractor or agent to whom either party provides Protected Health Information, the disclosing party shall first contractually obligate such Subcontractor or agent to agree to protect such Protected Health Information pursuant to terms and conditions at least as protective as the terms of this Business Associate Agreement.
2.8 Company may de-identify any and all Protected Health Information that is in its possession or control provided that Company implements de-identification criteria in accord with applicable law. De-identified information does not constitute Protected Health Information and is not subject to the terms of this Agreement.
3. Compliance with Law
3.1 Each party is responsible for its own compliance with any and all existing or subsequent laws, whether by statute, regulation, common law, or otherwise, related to its access to or use, processing or disclosure of Protected Health Information. You agree that it shall have and maintain appropriate consents from data subjects, as may be necessary, for Company to access, use, process and disclose Protected Health Information in accordance with its delivery of services under the Secure Messaging Terms of Service Agreement and as otherwise permitted under this Agreement.
3.2 The parties shall provide each other only the minimum amount of Protected Health Information necessary for Company to perform the Services described in the Secure Messaging Terms of Service Agreement.
3.3 Upon request by the Department of Health and Human Services (“HHS”), each party shall make available to HHS the internal practices, books, and records of such party relating to the use and disclosure of Protected Health Information for purposes of ensuring compliance with the provisions of HIPAA and the HITECH Act.
3.4 In the event that Company receives an inquiry from an individual for access to or the right to amend Protected Health Information, it shall advise You of that communication and the request. The parties shall cooperate in making Protected Health Information available to the individual and in making the requested amendment of Protected Health Information. You shall retain and make available on request information required to provide an accounting of disclosures in accordance with the provisions of HIPAA and the HITECH Act.
4. Termination and Destruction of PHI.
4.1 In the event that either party reasonably determines that the other has accessed, used, processed or disclosed unsecured Protected Health Information in a manner inconsistent with a material term of this Agreement, it shall provide written notice of such breach to the other party and specify in reasonable detail any such breach. Upon receipt of such written notice, the receiving party shall have 30 days to achieve compliance with this Agreement or to establish a reasonable schedule for compliance with this Agreement. In the event that a party fails or refuses to comply with this obligation, the other party may terminate this Agreement upon written notice. If either party reasonably determines that the other party has accessed, used, processed or disclosed Protected Health Information in a manner inconsistent with this Agreement following written notice of a prior breach, the non-breaching party may immediately terminate the Agreement.
4.2 Within 30 days of termination of this Agreement, Company shall return to You, or destroy, the Protected Health Information made available to Company by the Healthcare Provide that is in Company control and take reasonable steps to ensure that Company has no means of identifying or reidentifying individuals who are the subject of such Protected Health Information. Company will also obligate any Subcontractor to return to Company, or destroy, any such Protected Health Information in the Subcontractor's control.
4.3 In the event that Company is unable to return or destroy the Protected Health Information in its control, Company shall continue to protect such Protected Health Information from further disclosure.
5. Limitation of Liability.
UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, PROPRIETORS, PARTNERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SERVANTS, ATTORNEYS, PREDECESSORS, SUCCESSORS OR ASSIGNS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY, OR LOSS OF USE) ARISING OUT OF ITS ACCESS TO OR USE, PROCESSING OR DISCLOSURE OF PROTECTED HEALTH INFORMATION, EVEN IF IT OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages; thus, this limitation may not be applicable.
You will defend, indemnify, and hold harmless Company and its affiliates, and its and their respective directors, officers, shareholders, proprietors, partners, employees, agents, representatives, servants, attorneys, predecessors, successors and assigns, from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys' fees and litigation expenses), relating to or arising from Your (i) unauthorized access to or use, processing or disclosure of Protected Health Information, (ii) breach of this Agreement or (iii) violation of applicable law.
All notices and other communications required or permitted to be given by Company to You under this Agreement will be deemed to be properly given on the date when sent by email to the email address for You last recorded by Company, or sent by postal mail or private courier to the postal address for You last recorded by Company. All notices and other communications required or permitted to be given by You to Company under this Agreement will be deemed to be properly given on the date when sent by postal mail or private courier to 909 N. Sepulveda Blvd., 11th Floor, El Segundo, CA 90245, Attention: Legal Department.
This Agreement contains the final and entire agreement regarding Your use of the Services and supersedes all previous and contemporaneous oral or written agreements. The failure by either party to enforce any right or provision of this Agreement will not constitute a waiver of that provision or of any other provision of this Agreement. If any provision of this Agreement is determined to be invalid or unenforceable by a court, such provision will be deemed severable and the remainder of this Agreement will remain in full force and effect. This Agreement may not be assigned by You. Both parties agree that this Agreement, as well as any and all claims arising from this Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to its conflicts of law rules, and the parties irrevocably submit to the exclusive jurisdiction and venue of the courts of Los Angeles County, California and the Central District Court of California, respectively. The parties are independent contractors and this Agreement does not create an agency, partnership or joint venture. This Agreement may be executed in multiple counterparts, each of which will constitute an original and all of which taken together will constitute one and the same Agreement.
Last Revised September 13, 2016.