Last updated: 10/22/2022
These Customer Terms of Service (the “Terms”) are between Practice by Numbers, Inc. (“Practice by Numbers” or “we”) and the Customer identified in the accompanying Order Form (“Customer” or “you”). Practice by Numbers licenses certain software to customers (the “Software”) that are available to access through the cloud, via Practice by Numbers’ website (the “Website”) as a subscription service, together with other tools, content, and materials provided by Practice by Numbers on the Website or otherwise (the “Subscription Service”).
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCEPTING THEM BY SIGNING THE ACCOMPANYING ORDER FORM. THESE TERMS GOVERN THE LICENSE AND USE OF THE SUBSCRIPTION SERVICE AND SOFTWARE OFFERED BY PRACTICE BY NUMBERS AND PROVIDED TO CUSTOMER AND ITS USERS UNDER THE ORDER FORM(S) EXECUTED BY CUSTOMER. BY SIGNING THE ORDER FORM, YOU ARE INDICATING YOUR ACCEPTANCE OF THIS ENTIRE TERMS OF SERVICE CONTRACT. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT SIGN THE ORDER FORM.
These Terms are effective between Customer and Practice by Numbers as of the date Customer signs the initial Order Form and that Order Form is accepted by Practice by Numbers (the “Effective Date”). The person accepting the Order Form and these Terms on behalf of Customer represents that he or she has the authority to bind such entity to these terms and conditions.
If you are a User using the Subscription Service under the Customer’s license, applicable portions of these Terms are also binding upon you individually. Where applicable, “you” also refers to Users.
1. Definitions.
2. License. Practice by Numbers grants Customer a non-exclusive, non-transferable (except in accordance with Section 14) right and license, during the term of these Terms, to access and use the Subscription Service during the Term for each authorized Location. The Subscription Service is subject to the following license terms and limitations:
3. Support and Other Services.
4. Ownership.
Practice by Numbers Ownership. As between the parties, Practice by Numbers owns and retains all right, title and interest in and to the Subscription Service and all other Practice by Numbers Materials. Without limiting the foregoing, Practice by Numbers also owns all right, title and interest in and to de-identified and aggregated Customer Data, as set forth in Section 8(f) (“De-identified Data”). Any rights not expressly granted herein are reserved by Practice by Numbers.
Customer Ownership. As between the parties, Customer owns and shall retain all right, title and interest in and to all Customer Data. Customer Data does not include Feedback, Usage Data (as defined below), or De-identified Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary for Practice by Numbers to provide the Software and otherwise meet its obligations hereunder.
Feedback. Practice by Numbers shall own all rights and title to Feedback, and may incorporate it into any of its software, products and services. Practice by Numbers shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered to Customer in the performance of these Terms, regardless of whether it is based on or incorporates any Feedback, subject to the licenses granted herein to Customer.
Usage Data. The Subscription Service tracks metadata and other usage data related to Customer’s and Users’ use of the Subscription Service (“Usage Data”) and shares such data with Practice by Numbers. Practice by Numbers shall own such Usage Data, other than the Personal Information incorporated therein. Practice by Numbers shall have the perpetual right to collect, aggregate, use, distribute and sell such Usage Data for any legal purpose, including without limitation for the purposes of providing services and improving the Subscription Service and Company’s products and services generally. Practice by Numbers may retain and use Usage Data permanently. To the extent such Usage Data contains any individually identifiable data or Personal Information, Practice by Numbers shall not sell or otherwise provide such Usage Data to any third party unless the data been anonymized and/or aggregated with other users’ data, so that it is not identifiable as to any particular person. Notwithstanding the foregoing, Practice by Numbers may share Usage Data in its original form as necessary or appropriate to provide services to Customer (for example, using a third party to process payments) or to comply with legal obligations.
5. Fees and Payment.
Fees. Access to the Subscription Service for Customer and its Users is subject to timely payment of the fees specified in the applicable Order Form(s) (the “Fees”). Standard support and maintenance services for the Subscription Service, as described in Section 3(a), are included as part of such Fees at no additional charge.
Taxes. All fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than taxes imposed on Practice by Numbers’ income.
Payment. Customer will pay Practice by Numbers the then applicable fees described in the Order Form in accordance with the terms therein. Unless otherwise specified in the applicable Order Form, payments are due in advance, at the beginning of each period of your annual or monthly subscription term. You authorize us to charge you for the Subscription Service, and any other products or services ordered by you, using your payment method and for any paid feature of the Subscription Service that you choose to sign up for or use while these Terms are in force, including all recurring fees.
Changes to Fees. We will notify you in advance, either through the Subscription Service or to the email address you have most recently provided to us, if we change the Fees for the Subscription Service. If the Order Form specifies a specific length of time and Fees for the Subscription Service, that price will remain in effect for that period of time. After the initial term ends, if your account is renewed, your Subscription Service Fees will be charged at our then-current rates. If your Subscription Service account is on a periodic basis (for example, monthly) with no other specific term commitment, we will notify you of any change in the Fees at least thirty (30) days in advance. If you do not agree to these changes, you must cancel and stop using the Subscription Service by notification to Practice by Numbers at the contact information set forth at the end of these Terms (with cancellation confirmation from a Practice by Numbers representative) no later than fourteen (14) days prior to the conclusion of your current payment term, whether monthly, yearly, or otherwise. If you cancel, your Subscription Service license ends at the end of your current service period or, if we bill your account on a periodic basis, at the end of the period in which you canceled.
Late Payment. If Customer fails to make payment when due then, in additional to all other remedies that may be available: (i) Practice by Numbers may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Practice by Numbers for all reasonable costs incurred by Practice by Numbers in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days following written notice thereof, Practice by Numbers may suspend performance of the Subscription Service until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer by reason of such suspension.
Patient Payment Processing. Practice by Numbers may, in its sole discretion, make available as part of the Subscription Service a feature for patients (or their parents or guardians) to make payments to Customer, or may otherwise assist in facilitating payment by patients (or their parents or guardians) to Customer. Customer acknowledges and agrees that there may be additional service fees associated with any feature or assistance offered by Practice by Numbers that are charged to Customer, and Customer agrees to pay such fees according to these Terms and other applicable payment terms, if any.
6. Term; Termination or Suspension.
Term and Renewal. These Terms will commence on the Effective Date and will continue for the initial term specified in the applicable Order Form(s) (the “Initial Term”). At the end of the Initial Term, these Terms will automatically renew for additional renewal terms (each a “Renewal Term”) at Practice by Numbers’ then-current rates or as otherwise agreed in writing by the parties, unless either party terminates or cancels these Terms by providing thirty (30) days prior written notice to the other party. The length of each Renewal Term depends upon Customer’s subscription plan and term and is set forth in the Order Form.
Termination or Suspension for Cause. Either party will have the right to terminate these Terms and Customer’s account for cause at any time, upon written notice, in the event of (i) any material breach of these Terms by the other party, subject to thirty (30) days prior written notice and opportunity to cure such breach; or (ii) the other party’s dissolution, distribution of a substantial portion of its assets, or cessation of all or substantially all of its normal business affairs. Additionally, Practice by Numbers may temporarily suspend Customer’s and its Users’ access to the Subscription Service for any actual or suspected breach of these Terms, until the breach is resolved or termination occurs, as well as for system updates and maintenance. YOU ACKNOWLEDGE THAT IF YOUR ACCESS TO THE SUBSCRIPTION SERVICE IS SUSPENDED OR TERMINATED, YOU MAY NO LONGER HAVE ACCESS TO THE CUSTOMER DATA THAT IS STORED IN THE SUBSCRIPTION SERVICE.
Effect of Termination. Upon final termination of these Terms and the Transition Period, Customer will promptly pay all outstanding amounts owed to Practice by Numbers. Each party will promptly return to the other party all Confidential Information of the other party and delete any copies of such information or materials from its systems and files. Upon termination by Practice by Numbers, for reasons other than cause, or at your direction, you may request access to your Customer Data on the system, which we will make available for an additional fee. You must make such request with thirty (30) days following termination. Otherwise, any Customer Data you have stored with the Subscription Service may not be retrievable, and Practice by Numbers will have no obligation to maintain any data stored in your account. Any right or obligation of the parties in these Terms that, by its nature, should survive termination of expiration of these Terms, will survive any expiration or termination of these Terms.
7. Confidential Information. The party receiving any Confidential Information (i) shall not disclose such Confidential Information to any person, other than employees and independent contractors who have a need to know such information and who are obligated to keep such information confidential; or (ii) use such Confidential Information for any purpose, except as expressly permitted by these Terms. The receiving party shall give Confidential Information at least the same level of protection as it gives its own information of similar sensitivity, but not less than a reasonable level of protection. Confidentiality obligations shall survive any termination of these Terms.
8. Privacy and Security Relating to PHI and Personal Information.
Reasonable Safeguards. Practice by Numbers agrees to maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including personal health information (“PHI”) and other personal information and data of Users, Customer’s patients, and other individuals (“Personal Information”). Practice by Numbers will not disclose or use PHI or Personal Information except (i) as set forth in these Terms or the Privacy Policy, (ii) as compelled by law, (iii) as expressly permitted or instructed by Customer, or (iv) as reasonably necessary in order to provide the Subscription Service and other Services.
Privacy Policy. The Personal Information that Practice by Numbers obtains through Customer’s or Users’ use of the Subscription Service, Software, Services or any portion of the Website, whether through the registration process or otherwise, is governed by the Privacy Policy. The Privacy Policy sets forth Practice by Numbers’ policies and practices for collecting, using, maintaining, protecting and disclosing Personal Information. If a User does not agree with the Privacy Policy, the User may not use the Subscription Service, Software, Services or Website. Customer and Users also consent to Practice by Numbers’ communications and services as set forth in Section 9 below.
Processing in the U.S. The servers that host Practice by Numbers’ Subscription Service, Software, and Website are based in the United States of America and all content, information, and Personal Information provided through the Website will be received, processed and stored in the United States of America. Subject to compliance with any applicable privacy or other laws and regulations, Practice by Numbers reserves the right to store and process Customer Data (including Personal Information) outside of the United States, subject to thirty (30) days’ prior notice of any such change in the processing location.
Rights of Data Subjects. Practice by Numbers will comply with Users’ and patients’ requests in respect of the exercise of their rights with respect to their Personal Information under the Privacy Policy and applicable laws and regulations.
De-Identified Data; Use for Analyses. Unless otherwise prohibited by applicable law, Practice by Numbers may de-identify PHI or Personal Information in accordance with the provisions of applicable law and use and disclose such De-identified Data for any legal purpose. Practice by Numbers owns all right, title and interest in and to De-identified Data. Practice by Numbers may also use PHI or Personal Information in order to prepare analyses and reports, such as activity or quality-metrics reports, or any other reports the Subscription Service makes available, in order to render these reports to you. Preparation of such analyses and reports may include the use of data aggregation services relating to your treatment and health care operations, which Practice by Numbers may perform using PHI and Personal Information. Such reporting will be done in a manner that does not make any disclosure of PHI or Personal Information that are prohibited by law.
Data Breach Notification. In the event of any breach of the security or confidentiality of Customer Data, Practice by Numbers will promptly inform Customer of the breach. Practice by Numbers and Customer will promptly coordinate regarding informing any affected Users or patients of the breach as required under applicable law.
Customer’s and Users’ Security Obligations. Customer and its Users must keep their accounts and passwords confidential and not authorize any third party to access or use the Subscription Service on their behalf, unless Practice by Numbers provides an approved mechanism for such use. Customer and its Users must contact Practice by Numbers right away if they suspect misuse of their account or any security breach in the Subscription Service. We provide functions that allow you to control who may access your Customer Data. If you enable the features that allow you to share your Customer Data with others, anyone you’ve shared content with (including the general public, in certain circumstances) may have access to your data. You will maintain appropriate security, protection and backup copies of the Customer Data through your system, which may include use of additional encryption technology to protect the Customer Data from unauthorized access. You must immediately notify Practice by Numbers in writing of any unauthorized use of any Customer Data, any account, or the Subscription Service that comes to your attention, and cooperate with and assist Practice by Numbers with respect to any such unauthorized use as Practice by Numbers may reasonably request. Practice by Numbers will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Customer Data. Customer and Users are responsible for all activities that take place with their Subscription Service accounts. PRACTICE BY NUMBERS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM ANY UNAUTHORIZED ACCESS TO OR USE OF AN ACCOUNT.
User Accounts. If you are a User whose Subscription Service account was provided by your employer or another organization, that party has rights to your account and may: manage your account, reset your password, or suspend or cancel your account; view your account’s usage and profile data, including how and when your account is used; and read or store content in your account. If you have individually registered to use the Subscription Service and the domain of the primary email address associated with your account is owned by an organization and was assigned to you as an employee, contractor or member of such organization, and that organization wishes to establishes a commercial relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the commercial relationship between Practice by Numbers and such organization and will be controlled by such organization.
9. Consent to Communications and Services.
Communications from Practice by Numbers. By registering with Practice by Numbers, you understand that Practice by Numbers may send you communications or data regarding the Subscription Service and other Services, including but not limited to (i) notices about your use of the Subscription Service, including any notices concerning violations of use, (ii) updates and Modifications to the Subscription Service, and (iii) promotional information and materials regarding Practice by Numbers’ products and services, via email. Practice by Numbers will give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message.
Remote Log-in Services. In connection with the provision of technical support, training and other Services, you agree that Practice by Numbers may remotely log in to your computers, devices and systems for purposes of providing the support, training or other Services, including, without limitation, technical trouble shooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. You further agree that Practice by Numbers may also remotely log in at any time as necessary or appropriate to maintain our Services.
Log-off of Inactive Accounts; Spam Policies. Practice by Numbers reserves the right to log off accounts that are inactive for an extended period of time. In addition, Practice by Numbers may quarantine suspect messages. Practice by Numbers also may modify any domain and user settings with or without notice, including without limitation, altering settings so that spam or bulk email is denied, rather than being quarantined, to avoid space capacity issues which jeopardize the technical or economic viability of the Subscription Service, or the system used to implement the Subscription Service.
Access to Your System. You must add Practice by Numbers or its third party affiliate to the “allowed” list of programs and ensure that your firewall and anti-virus software programs do not block us. Additionally, your practice management software must always be accessible by Practice by Numbers. It is your responsibility to contact Practice by Numbers if you are upgrading or changing your computer systems.
Access to Third Party Services. The Subscription Service may require you to give Practice by Numbers access to accounts or services you may have with third party providers that link to the Subscription Service. When you give Practice by Numbers access to these third party accounts, you agree that you have read all contracts and written agreements governing such access and that you have all the necessary contractual and legal rights to give Practice by Numbers such access.
Recording of Service Calls. Practice by Numbers may record calls between you and our agents regarding the Subscription Service (“Service Calls”) and in connection with the Subscription Service, incoming calls, on your behalf as a Service, from, among others, your prospective clients (the “Inbound Calls” and, collectively with Service Calls, “Call Recording”). You consent to Call Recording and acknowledge you are responsible for notifying your employees and agents who may be recorded in a Service Call or Inbound Call (the “Recorded Persons”) and complying with all applicable laws, rules and regulations regarding call recording and privacy. It is your sole responsibility to provide and/or obtain, and you covenant that you will provide and/or obtain, all notices and permissions relating to Recorded Persons as may be required by applicable laws and regulations. You acknowledge and agree that if you collect information from Recorded Persons that may be subject to a privilege (including, but not limited to, attorney-client or doctor-patient privilege), you assume the full risk of using a third party provider for Call Recording, including any preclusion of the application of such privilege with respect to information exchanged during the Call Recording with the Records Persons.
10. Customer’s Warranties. Customer represents and warrants to Practice by Numbers that:
Customer has full power and authority to enter into these Terms and make the agreements specified herein.
Customer shall not have any right or authority to make any representations or warranties on Practice by Numbers’ behalf, except as expressly approved in writing by Practice by Numbers; or to assume or create any obligations or responsibilities, express or implied, on behalf of Practice by Numbers; or to bind Practice by Numbers in any way; except as expressly set forth in these Terms. Practice by Numbers shall not be liable for any unauthorized representations or warranties made by Customer.
Customer Data will not violate any person’s right of privacy or any copyright, trademark, or other intellectual property rights, and Customer will not transmit any such materials to Practice by Numbers. Customer has all the rights in the Customer Data necessary for Customer to use the Subscription Service and to grant the rights in these Terms; and the storage, use or transmission of the Customer Data pursuant to the terms of these Terms does not violate any laws or regulations or these Terms.
Customer shall not use the Software or Subscription Service in any way that violates the Telephone Consumer Protection Act (“TCPA”), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”), the Telemarketing Sales Rule authorized by the Telemarketing and Consumer Fraud and Abuse Prevention Act (“TSR”), or any other applicable telecommunications laws or regulations. As between Customer and Practice by Numbers, Customer agrees that it will comply and be solely responsible for complying with all laws governing any messages sent or received in connection with its access and use of the Subscription Service, including the TCPA, CAN-SPAM Act, and TSR. Specifically, Customer agrees to be responsible for, without limitation, obtaining any legally required consent(s) from any and all third parties (including Customer’s patients) to send and receive any text message and/or emails using the Subscription Service and honoring any requests revoking such consent or otherwise opting-out of receiving any such messages and/or emails.
11. No Warranties; Disclaimers and Limitations of Liability.
DISCLAIMER OF WARRANTIES. THE SUBSCRIPTION SERVICE, PRACTICE BY NUMBERS MATERIALS, AND OTHER PRODUCTS AND SERVICES OF PRACTICE BY NUMBERS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS, PRACTICE BY NUMBERS IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SUBSCRIPTION SERVICE AND OTHER PRODUCTS AND SERVICES OF PRACTICE BY NUMBERS, AND PRACTICE BY NUMBERS AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO PRACTICE BY NUMBERS’ PRODUCTS AND SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, WHETHER SUCH CLAIMS ARISE BY LAW, BY REASON OF CUSTOM OR USAGE OF TRADE, OR BY COURSE OF DEALING. PRACTICE BY NUMBERS AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SUBSCRIPTION SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY YOU DUE TO CAUSES BEYOND THEIR CONTROL.
AGREEMENTS WITH PATIENTS AND OTHERS. PRACTICE BY NUMBERS EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS YOU MAY HAVE WITH YOUR PATIENTS, EMPLOYER, CONSUMERS OR WEBSITE USERS. YOU WILL BE SOLELY RESPONSIBLE FOR THE PRODUCTS AND SERVICES THAT YOU PROVIDE.
Third Party Software, Websites and Services. Practice by Numbers is not liable for any damages or claims arising out of or related to Third Party Software. Open source copyright holders have no liability to Customer for any reason. If you decide to access or use any third party websites or services linked to the Subscription Service or our Website, you do this entirely at your own risk. Practice by Numbers is not responsible or liable for any third party websites, content, or services.
Insurance Data. Practice by Numbers may, from time to time, provide access or otherwise make available to you data from insurance providers. Practice by Numbers makes no representations, warranties, or other covenants regarding the accuracy, completeness, or authenticity of such data. Under no circumstances will Practice by Numbers be liable for any damages or claims arising out of or related to such data.
Patient Forms. Practice by Numbers may make available to you certain forms that you may choose to use with patients. These forms shall be made available to you “as is”, and Practice by Numbers makes no representation, warranties, or other covenants regarding such forms. Under no circumstances will Practice by Numbers be liable for any damages or claims arising out of or related to the use of such forms.
COMPLIANCE WITH LAWS. PRACTICE BY NUMBERS OFFERS NO ASSURANCE THAT YOUR USE OF THE SUBSCRIPTION SERVICE UNDER THESE TERMS WILL NOT VIOLATE ANY LAW OR REGULATION APPLICABLE TO YOU. PRACTICE BY NUMBERS AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTIES THAT THE SUBSCRIPTION SERVICE, ITS CONTENTS OR ANY OTHER PRACTICE BY NUMBERS MATERIALS ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF YOU USE THE SUBSCRIPTION SERVICE OR OTHER PRACTICE BY NUMBERS MATERIALS OUTSIDE THE UNITED STATES OF AMERICA, YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING WITH RESPECT TO EXPORT AND IMPORT, DATA PRIVACY AND SECURITY.
NO PROFESSIONAL ADVICE. YOU ACKNOWLEDGE AND AGREE THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SUBSCRIPTION SERVICE ARE NOT INTENDED AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT OF TAX, LEGAL OR OTHER PROFESSIONALS. THE SUBSCRIPTION SERVICE DOES NOT PROVIDE TAX OR LEGAL ADVICE, AND YOU ARE SOLELY RESPONSIBLE FOR OBTAINING SUCH ADVICE.
Consumer Protections. In the event that the jurisdiction where the Subscription Service and other Practice by Numbers products or Services are received or used by you does not allow the exclusion of implied warranties or the limitation of liability for damages as set forth in this Section, Practice by Numbers’ liability will be limited to the greatest extent permitted by the applicable law in that jurisdiction.
Limitations of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL PRACTICE BY NUMBERS, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT); (ii) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (iii) ANY LOSS OF DATA OR OTHER CONTENT RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS RESPECTING THE SUBSCRIPTION SERVICE OR PRACTICE BY NUMBERS’ OPERATIONS. THIS LIMITATION APPLIES TO DAMAGES HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF PRACTICE BY NUMBERS HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF PRACTICE BY NUMBERS AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SUBSCRIPTION SERVICE AND THESE TERMS WILL BE LIMITED TO AN AMOUNT EQUAL THREE MONTHS OF YOUR FEES FOR THE SUBSCRIPTION SERVICE.
GENERAL. THE LIMITATIONS AND EXCLUSIONS OF THIS SECTION 11 APPLY EVEN IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
12. Indemnification. To the extent permitted by law, you will indemnify, defend and hold harmless Practice by Numbers, including its affiliates, officers, directors, agents, employees, contractors, licensors, and other business partners, from and against any claim, demand, judgment, liability, costs, expense (including attorney fees and costs), cost, loss, damage, or other liability arising from any third party (including without limitation your patients) demand or claim arising out of your breach or alleged breach of these Terms, any of the Customer Data uploaded or provided by you, the products and services that you or your company or organization provide, or your violation of any applicable law, rule, or regulation. This indemnity does not apply if the claim is based upon Practice by Numbers’ gross negligence or willful misconduct.
13. Arbitration. Any dispute, controversy, or claim arising out of or related to these Terms or any breach or termination of these Terms, whether sounding in contract, tort, or statute, shall be submitted to and decided by binding arbitration. Arbitration shall be administered by the American Arbitration Association and held in Seattle, Washington before a single arbitrator, in accordance with the American Arbitration Association’s rules, regulations, and requirements. Any arbitral award determination shall be final and binding upon the parties. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction. Arbitration shall proceed only on an individual basis. The parties waive all rights to have their disputes heard or decided by a jury or in a court trial and the right to pursue any class or collective claims against each other in court, arbitration, or any other proceeding. Each party shall only submit their own individual claims against the other and will not seek to represent the interests of any other person. The arbitrator shall have no jurisdiction or authority to compel any class or collective claim, or to consolidate different arbitration proceedings with or join any other party to an arbitration between the parties.
14. Assignment. You may not assign or transfer these Terms, your Subscription Service account, or any of your rights or duties hereunder to any third party without prior written consent of Practice by Numbers, which may not be unreasonably withheld, provided, that Customer shall have the right, without Practice by Numbers’ consent, to assign or otherwise transfer these Terms in connection with any merger, consolidation, or reorganization involving Customer, or a sale of all or substantially all of Customer’s business or assets relating to these Terms to an unaffiliated third party. We may assign, transfer, or otherwise dispose our rights and obligations under these Terms, in whole or in part, at any time without notice.
15. Copyright Claims and Take-Down Policy. Practice by Numbers does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates these Terms and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. We reserve the right to delete or disable any Customer Data or content that is alleged to infringe or otherwise violate these Terms, and to terminate repeat offenders. For notice of alleged copyright infringement, please contact us at the email and/or street address set forth at the end of these Terms for legal notices. The Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act requires your copyright infringement notice to include the following information: (i) identification of the copyrighted work that you claim has been infringed; (ii) identification of the material, including URL, that you claim is infringing, with enough detail so that we may locate it; (iii) your address, telephone number, and e-mail address; (iv) a statement declaring under penalty of perjury that (A) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (B) the above information in your notice is accurate, and (C) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and (v) your physical or electronic signature.
16. General.
Entire Agreement; Amendment. These Terms, including the Order Form(s), Privacy Policy and any other documents attached hereto or incorporated herein by reference, constitute the entire agreement between you and Practice by Numbers concerning the subject matter of these Terms, and supersede all prior or oral agreements or understandings with respect thereto. These Terms may not be amended except by a writing signed by authorized representatives of both parties.
No Waiver. Any waiver by either party of a default or obligation under these Terms will be effective only if in writing. Such a waiver does not constitute a waiver of any subsequent breach or default. No failure to exercise any right or power under these Terms or to insist on strict compliance by the other party will constitute a waiver of the right in the future to exercise such right or power or to insist on strict compliance.
Choice of Law and Jurisdiction. These Terms shall be construed in accordance with the laws of the State of Washington, excluding conflicts of laws provisions. Should any dispute arise concerning these Terms and/or Practice by Numbers’ products or services, venue shall be in King County, Washington, Washington state and federal courts shall have exclusive jurisdiction over any such dispute, and the parties hereby consent to the jurisdiction and venue of such courts. The parties specifically exclude from any application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Notwithstanding the foregoing, and solely to the extent required by law, claims regarding personal data privacy and consumer protection may be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country in which you reside.
Severability. If any provision of these Terms is deemed invalid or unenforceable by a court or governmental authority, that provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remainder of these Terms shall remain in full force and effect.
Export Compliance. Customer may not use, export or re-export the Subscription Service, Software or other Practice by Numbers Materials in any form in violation of U.S. export laws and regulations, or without first obtaining the appropriate United States and foreign government approvals.
Notices. We may send you, in electronic form, information relating to the Subscription Service, information relating to our other products and services, and information that the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Subscription Service or by posting such information on the Subscription Service portal. Notices emailed to you will be deemed given and received when the email is sent. You consent to receiving legal notices electronically in this manner. If you refuse or withdraw your consent to receive notices electronically, you must stop using the Subscription Service. You may provide legal notices to us at the email address specified at the end of these Terms, with a duplicate copy sent via registered or certified mail, return receipt requested, to Practice by Numbers’ street address set forth below. Any such notices must specifically reference that it is a notice given under these Terms.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Customer is not an agent of Practice by Numbers and will not represent to any third party that it is an employee or agent of Practice by Numbers. Customer shall have no authority to enter into any contract on behalf of Practice by Numbers or to make any representations or warranties on Practice by Numbers’ behalf to patients or any other third parties.
U.S. Government Restricted Rights. Any Software provided as part of the Subscription Service for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”) is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, as applicable.
Injunctive Relief. You acknowledge that the Practice by Numbers’ intellectual property and Confidential Information is highly valuable to Practice by Numbers, that any breach of your obligations with respect to confidentiality and/or use of Practice by Numbers’ intellectual property, including any breach by you of any restrictions on use of the Subscription Service or the scope of the licenses granted by Practice by Numbers herein, may damage Practice by Numbers, the extent of which damage would be difficult to ascertain and, therefore, that Practice by Numbers is entitled to seek, among other remedies, temporary and permanent injunctive relief and other equitable relief for any such breach, without the necessity of posting bond or other security, to the extent permitted by law.
Time to File Claims. You must bring any claim related to these Terms or the Subscription Service within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims.
Force Majeure. Practice by Numbers shall be excused from and shall not be liable for any delays or failure to perform its duties to the extent such delays or failures result from acts of nature, riots, war, acts of public enemies, fires, epidemics, pandemics, labor disputes, or any other causes beyond its reasonable control.
17. Contact Information.
If you have any comments or questions, you may address them to:
Practice by Numbers, Inc.
11523 Avondale Rd NE, Ste 115
Redmond, WA 98052
Technical Support: support@practicenumbers.com
Legal Notices: legal@practicenumbers.com
Improving your patient relationships doesn’t have to be an impossible, insurmountable task. Practice by Numbers makes it easy for you to get up and running in as little as 1 day.
