Terms of Use

TERMS OF SERVICE

 

Effective: 12/1/2016

 

Welcome to Practice by Numbers, found at www.practicenumbers.com (the “Website”). Please read these terms of service (these “Terms”) carefully as they form a contract between you and Practice By Numbers, Inc., a Washington corporation (“we,” “us,” “our,” or “Practice by Numbers,”) that governs your access and use of the websites, services and software provided by Practice by Numbers (collectively, the “Services”). In order to use the Services, you must agree to these Terms.

 

  1. YOUR ACCEPTANCE OF THESE TERMS

 

These Terms contain the terms and conditions that govern your use of the Services and also describe your rights and responsibilities and what you can expect from your use of the Services. Your use of the Services constitutes your acceptance and agreements to these Terms. If you do not agree with these Terms, you are prohibited from accessing the Services and must immediately discontinue using the Services. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and representing to us that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Services.

 

You may use the Services only in compliance with these Terms and only if you have the power to form a contract with Practice by Numbers and are not barred under any applicable laws from doing so.

 

These Terms require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and limit the remedies available to you in the event of a dispute. Please see Section 13, below, for more information.

 

  1. CHANGES TO THESE TERMS

 

Practice by Numbers reserves the right to add, delete, and/or modify any of the terms and conditions contained in these Terms at any time and in its sole discretion by posting a change notice on the Services. In the event of substantive changes to these Terms, you may be notified by email of the changes. If any modification is unacceptable to you, you should immediately cease use of the Services. Your continued use of the Services following a notice of a change in the Terms on the Service or the Website will constitute your binding acceptance of the changes.

 

  1. REGISTRATION

 

To obtain access to the Services beyond navigating the Website, you must register an account with Practice by Numbers by subscribing to the Services. You will be designated as the administrator for your account, if you are an individual, or the administrator for your organization if you are subscribing on behalf of a practice (hereinafter referred to as, the “Administrator”). During registration you must provide us contact information (e.g., your name and email address) and your organization or entity information (e.g., the name and address of your practice). You may also be asked to provide certain financial information, such as a valid credit card number and expiration date.

 

All registration information you supply must be complete and accurate. You are required to maintain and update this information to ensure completeness and accuracy. You may not share your account credentials with anyone, and you alone are responsible for maintaining the confidentiality of your account and its password, and are fully responsible for all activities that occur under your account. You agree to notify Practice by Numbers immediately upon discovery of any unauthorized use of your password or account or any other breach of security.

 

  1. ACCESS TO THE SERVICES

 

4.1        License.

 

As an Administrator, Practice by Numbers grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term to authorize individual users (“Users”) to access the Services from servers operated by Practice by Numbers or a third party hosting company (the “Host”) for your organization’s own internal use. For clarity, “Users” means any individual subscriber or the partners, members, employees, temporary employees, and independent contractors of an organization with a subscription to the Services who have been added to the account as users by an Administrator.

 

4.2        Updates.

 

Practice by Numbers may provide to you, from time to time and at no additional fee, bug fixes, corrections, modifications, and updates for the Services (“Updates”) in the same manner as provided to other organizations subscribed to the Services during the Term.

 

4.3        Feedback.

 

By sending or submitting messages to Practice by Numbers about the Service, including but not limited to images, feedback, suggestions, ideas, or any other feedback you have generated (collectively, the “Feedback”), you automatically grant, and you represent and warrant that you have the right to grant, to Practice by Numbers an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, copy, publicly perform, publicly display, distribute, sublicense, prepare derivative works of, or incorporate into other works or the Services the Feedback.

 

  1. PERMISSIBLE USES OF THE SERVICES

 

You may only use the Services as expressly permitted by Practice by Numbers and only for lawful purposes. You agree that you will not do any of the following:

 

(i)          Use any robot, spider, script, scraper, deep link or other similar automated data gathering or extraction tools, programs, algorithm or methodology to access, acquire, copy or monitor the Services or a portion of the Services without Practice by Numbers’ prior written consent, which consent may be withheld for any reason;

 

(ii)         Use the Services in any manner that could damage, disable, overburden, disrupt or impair any Practice by Numbers or Host server, the network(s) connected to any Practice by Numbers or Host server, or interfere with any other party’s use and enjoyment of the Services;

 

(iii)        Disobey any applicable policies or regulations of networks connected to the Services;

 

(iv)        Modify, adapt, translate or reverse engineer the Services;

 

(v)         Frame or reformat the Services in any way;

 

(vi)        Register to use the Services or create an account on the Service using any automated means or under false pretenses.

 

  1. SUPPORT SERVICES

 

Depending on the portion of Services you subscribe to, Practice by Numbers may provide implementation, configuration, training or other support services (“Support Services”) in connection with the Services, as set forth in the particularized description of such portion of the Services. By selecting a portion of the Services that include Support Services, you agree that you will work with us in good faith in order to effectuate such Support Services (e.g. coordinating with us to determine the most effective time for on-site User training).

 

  1. CONTENT

 

7.1        Ownership.

 

Practice by Numbers and its licensors own and shall retain all rights, title and interest in and to the Services, all modifications and improvements thereto (including any made by or with your participation), all Feedback and, unless otherwise agreed in writing, all intellectual property rights therein (collectively, the “Practice by Numbers Property”). You hereby irrevocably and unconditionally assign any and all rights you may have in the Practice by Numbers Property to us. You further covenant not to challenge Practice by Numbers’ exclusive ownership of the Practice by Numbers Property or directly or indirectly assert any rights inconsistent with Practice by Numbers’ exclusive ownership of the Practice by Numbers Property.

 

7.2        Your Materials.

 

The Services allow you and your Users to select, input, upload and share information and data in connection with using the Services. The Services further allow you and your Users to select, input, upload and share information and data in connection with and through certain third-party services and platforms (“Third Party Services”). The Services allow you and your Users to access Third Party Services using the Services to act on a wide variety of information accessed by the Services and originating from Third Party Services. The Services allows Users to install software or components of the Services on your servers, desktops, laptops, and other devices (“Your Servers”) and allow the Services to access data on Your Servers and through Third Party Services to collect data (“Your Materials”) and generate reports based on these activities (“Services Data”).

 

As between you and Practice by Numbers, you agree that all aggregated and anonymized data resulting from Your Materials and all aggregated and anonymized Services Data (“Aggregated Anonymous Data”) is and will remain property of Practice by Numbers and you further acknowledge and agree that Practice by Numbers may use, execute, display, and commercially exploit the Aggregated Anonymous Data.

 

You are solely responsible for Your Materials. By installing the software or components thereof on Your Servers and accessing Third Party Services using the Services, you hereby represent and warrant that you have the lawful right to install the Services on Your Servers and access such Third Party Services, and that the creation, distribution and reproduction of Your Materials complies with the terms applicable to the Third Party Services and Your Materials. Practice by Numbers is not responsible for any loss or damage to Your Materials or Your Servers. You assume all risks for Your Materials and Your Servers and you are solely responsible for protecting and backing up the same.

 

To the extent that any of Your Materials provided to Practice by Numbers contains personal information, such information will be subject to our Privacy Policy available at www.practicenumbers.com/privacy, incorporated herein by reference, and the security provisions of these Terms.

 

7.3        Ownership of Your Materials; License.

 

You hereby grant Practice by Numbers the right to transmit, use, and disclose Your Materials solely to the extent necessary to provide the Services, as otherwise permitted by these Terms, to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which Practice by Numbers believes in good faith requires Practice by Numbers to disclose information to assist in preventing death or serious bodily injury to any person.

 

  1. SECURITY

 

Practice by Numbers acknowledges and agrees that its security procedures and systems, including those related to the Services and hosting services, will align with industry standards. You acknowledge that Practice by Numbers may provide hosting services for the Services through a third-party Host under an agreement with Practice by Numbers, a copy of which is available or made be made available, as applicable, to you upon request. Practice by Numbers agrees that any and all agreements between Practice by Numbers and its third-party service providers involving Your Materials shall include provisions which legally bind such third party service provider to confidentiality, data privacy and security provisions at least as protective of Your Materials as these Terms. Practice by Numbers shall execute a Business Associates Agreement if there is any instance in which Practice by Numbers shall receive from or create or receive on behalf of you or your organization any Protected Health Information, or Practice by Numbers creates, receives, maintains or transmits on behalf of you any Electronic Protected Health Information (as those terms are defined under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996).

 

You are solely responsible for implementing security and access procedures necessary to ensure that no unauthorized person may access or use the Services, and that all access thereto is limited to authorized Users and is solely for the purpose authorized under these Terms. Any unauthorized access or use of the foregoing by or resulting from a failure by you to comply with the foregoing obligations shall be a breach of these Terms by you. You agree that you will immediately notify Practice by Numbers of such unauthorized use or access and shall be solely liable for the same. You shall ensure that all Users agree to the limitations on the use of the Services.

 

  1. FEES AND EXPENSES

 

If you elect to access any paid component of the Services, such as becoming a subscriber of one of the available plans, you agree to pay all fees and charges associated with your subscription on a timely basis. All such fees and charges (including any taxes and late fees, as applicable) will be charged to credit card you provide to us during the registration process. You agree to maintain valid credit card information in your account information. By submitting your credit card information to Practice by Numbers, you are authorizing Practice by Numbers to charge your credit card the fees associated with the plan you have selected. Practice by Numbers will use secure socket layer (SSL) encryption that permits your sensitive payment information to be securely collected and transmitted.

 

  1. WARRANTY DISCLAIMER

 

PRACTICE BY NUMBERS PROVIDES THE WEBSITE AND THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. PRACTICE BY NUMBERS DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE SERVICE OR THEIR USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. PRACTICE BY NUMBERS MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON INFRINGEMENT.

 

  1. LIMITATION OF LIABILITY

 

PRACTICE BY NUMBERS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE SERVICE OR THESE TERMS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF A PARTY’S REPRESENTATIONS AND WARRANTIES UNDER THESE TERMS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THESE TERMS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THESE TERMS EXCEED THE AMOUNT DIRECTLY PAID BY YOU TO USE THE SERVICES DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY.

 

  1. INDEMNIFICATION

 

You will indemnify and hold Practice by Numbers, its directors, officers, employees, agents and licensors harmless with respect to any damage, loss, expense, suit or claim, including attorneys’ fees and costs (collectively, a “Claim”) arising out of (i) your or your User’s breach of these Terms, including but not limited to, any infringement by you or your Users of the intellectual property of any third party; or (ii) any third party Claim arising out of your or your User’s use or misuse of the Service. If you are required to indemnify Practice by Numbers under this section, Practice by Numbers will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without Practice by Numbers’ express written permission.

 

  1. DISPUTE RESOLUTION

 

13.1      Mandatory Arbitration.

 

Any controversy, claim or dispute of whatever nature arising between the parties arising out of or relating to these Terms, or any agreement in which they are incorporated, or the breach, termination, enforceability, scope, or validity thereof, whether such claim existed prior to or arises on or after the execution date (a “Dispute”), will be resolved by binding arbitration in King County, WA, USA or other location agreed upon by Practice by Numbers. The prevailing party in any such action will be entitled to recover all costs, including reasonable attorneys’ fees, at trial and on any appeal or petition for review, incurred in enforcing the terms of these Terms, or any other agreement including the provisions of these Terms.

 

13.2      Procedure.

 

Neither party will commence an arbitration proceeding pursuant to the provisions set forth below unless that party first gives a written notice (a “Dispute Notice”) to the other party setting forth the nature of the Dispute. The parties must attempt in good faith to resolve the Dispute through discussions between the parties’ executive officers.

 

If the Dispute has not been resolved as provided above, within sixty (60) days after receipt of the Dispute Notice, or if a party fails to participate in those discussions, then the Dispute will be determined by binding arbitration. The arbitration will be conducted in accordance with such rules as may be agreed upon by the parties, or failing agreement within thirty (30) days after arbitration is demanded, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA). The Dispute will be determined by one arbitrator, except that if the Dispute involves an amount in excess of $1,000,000 (exclusive of interest and costs), three arbitrators will be appointed.

 

Persons eligible to serve as arbitrators need not be members of the AAA, but they must have professional credentials demonstrating the ability to handle a matter of the scope and complexity of the Dispute. The arbitrator(s) will base the award on the applicable law and judicial precedent that would apply if the Dispute were decided by a United States District Court Judge and the arbitrator(s) will have no authority to render an award, which is inconsistent therewith. The award must be in writing and include the findings of fact and conclusions of law upon which it is based.

 

Unless the parties agree otherwise, discovery will be limited to an exchange of directly relevant documents. Depositions will not be taken except as needed in lieu of a live appearance or upon mutual agreement of the parties. The arbitrator(s) will resolve any discovery disputes. The arbitrator(s) and counsel of record will have the power of subpoena process as provided by law. The parties knowingly and voluntarily waive their rights to have any Dispute tried and adjudicated by a judge or a jury.

 

The arbitration will be governed by the substantive laws of the State of Washington, without regard to conflicts-of-law rules, and the Federal Arbitration Act (Title 9, U.S. Code). Judgment upon the award rendered may be entered in any court having jurisdiction. Notwithstanding the foregoing, upon the application by either party to a court for an order confirming, modifying or vacating the award, the court will have the power to review whether, as a matter of law based on the findings of fact determined by the arbitrator(s), the award should be confirmed, modified, or vacated in order to correct any errors of law made by the arbitrator(s). In order to effectuate such judicial review limited to issues of law, the parties agree (and will stipulate to the court) that the findings of fact made by the arbitrator(s) will be final and binding on the parties and will serve as the facts to be submitted to and relied upon by the court in determining the extent to which the award should be confirmed, modified, or vacated.

 

Except as otherwise required by law, the parties and the arbitrator(s) agree to keep confidential and not disclose to third parties any information or documents obtained in connection with the arbitration process, including the resolution of the Dispute. If either party fails to proceed with arbitration as provided in these Terms, or unsuccessfully seeks to stay the arbitration, or fails to comply with the arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other party will be entitled to be awarded costs, including reasonable attorney’s fees, paid or incurred in successfully compelling such arbitration or defending against the attempt to stay, vacate or modify such arbitration award and/or successfully defending or enforcing the award.

 

13.3      Damages Waiver.

 

Each party hereby waives any and all rights it may have to receive exemplary or punitive damages with respect to any claim it may have against the other party, it being agreed that no party will be entitled to receive money damages in excess of its actual compensatory damages, notwithstanding any contrary provision contained in these Terms or otherwise. Notwithstanding any contrary provisions in this Section 12, the parties recognize that certain business relationships could give rise to the need for one or more of the parties to seek emergency, provisional or summary relief to repossess and sell or otherwise dispose of goods, equipment and/or fixtures, to prevent the sale or transfer of goods, equipment and/or fixtures, to protect real or personal property from injury, or to obtain possession of real estate and terminate leasehold interests, and for temporary injunctive relief. Immediately following the issuance of any such relief, the parties agree to the stay of any judicial proceedings pending mediation or arbitration of all underlying claims between the parties.

 

13.4      Class Action Waiver

 

Any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action, unless both you and Practice by Numbers specifically agree to do so in writing following initiation of an action. This provision is not applicable to the extent such waiver is prohibited by law.

 

13.5      Right to Opt Out of Class Action Waiver and Binding Arbitration

 

If you do not wish to be bound by the class action waiver or individual arbitration provisions in this section, you must notify Practice by Numbers in writing within 30 days of the date that you accept these terms, unless the law requires a longer period.

 

Your written notification must be sent to Attn: Legal, Practice By Numbers, Inc., 11523 Avondale Road N.E. #115, Redmond, WA 98052, or the following email address: info@practicenumbers.com, with “Arbitration and Class Action Waiver” as the subject line and must include: (i) your name, (ii) your address, (iii) the phone number included in your Practice by Numbers Account, and (iv) a clear statement that you do not wish to resolve disputes with Practice by Numbers through individual arbitration and/or a clear statement that you would like to opt out of the above class action waiver.

 

  1. TERMINATION

 

You may cancel your account for any reason at any time by following the account termination procedures in your account profile or by sending a request to support@practicenumbers.com. Practice by Numbers may suspend, limit your access to, or terminate your use of the Service at any time, with or without cause, in its sole discretion. Notwithstanding this section, these Terms will survive indefinitely unless and until Practice by Numbers chooses to terminate these Terms.

 

  1. NOTICES

 

All notices required or permitted to be given under these Terms will be in writing and delivered to the other party by any of the following methods: (i) U.S. Mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to Practice by Numbers, you must use the following mailing address, Attn: Legal, Practice By Numbers, Inc., 11523 Avondale Road N.E. #115, Redmond, WA 98052, or the following email address: info@practicenumbers.com.

 

If Practice by Numbers provides notice to you, Practice by Numbers will use the contact information provided by you to Practice by Numbers. All notices will be deemed received as follows: (i) if by delivery by U.S. Mail, five (5) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other non-delivery notice is generated. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy the requirement.

 

  1. THIRD PARTY SERVICES

 

Practice by Numbers may use third parties to provide certain services accessible through the Services (such as payment processing or acting as a Host). Practice by Numbers does not control those third parties or the services provided, and you agree that Practice by Numbers will not be liable to you in any way for your use of such services or any charges incurred by you while using such services. These third parties may have their own terms of service and other polices. When you use those services, you must comply with such terms and policies, as well as these Terms. If any such terms or policies conflict with these Terms, or other Practice by Numbers agreements or policies, you must comply with these Terms and any other Practice by Numbers agreements, or policies, as applicable.

 

  1. COPYRIGHT INFRINGEMENT

 

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. In appropriate circumstances and at Practice by Numbers’ discretion, Practice by Numbers may terminate your account if you become a repeat copyright infringer. If you believe in good faith that any content made available in connection with the Service infringes your copyright, you (or your agent) may send us a notice requesting that the content be removed, or access to it blocked. Notices and counter notices must meet the then-current statutory requirements imposed by the DMCA (see http://www.copyright.gov for details).

 

Currently, an effective notice must contain the following: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works at that Service; (iii) identification of the claimed infringing material or subject of infringing activity that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your address, telephone number, and, if available, your email address; (v) a statement that you have a good faith belief that use of the copyrighted material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

Notices and counter notices with respect to the Services should be sent to Attn: Legal, Practice By Numbers, Inc., 11523 Avondale Road N.E. #115, Redmond, WA 98052, or via email at info@practicenumbers.com.

 

  1. MISCELLANEOUS

 

These Terms will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of Washington, without reference to conflict of law principles. These Terms (including all of the policies and other agreements described in these Terms, which are incorporated herein by this reference) contain all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power, or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power, or privilege preclude any other or further exercise of any such right, power, or privilege. You and Practice by Numbers are independent entities, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these Terms. The invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision of these Terms, all of which will remain in full force and effect. The headings used throughout these Terms are merely descriptive and not operative and have no legal or contractual effect.

 

  1. COMMENTS AND QUESTIONS

 

If you have any comments or questions, you may address them to Practice By Numbers, Inc., 11523 Avondale Road N.E. #115, Redmond, WA 98052, or via email at info@practicenumbers.com.