Tidemark VA Services LLC Terms of Service
BY ACCESSING, USING THE SOFTWARE AND/OR SIGNIFYING YOUR ACCEPTANCE TO THESE TERMS OF SERVICE, YOU AGREE TO THE TERMS OF THIS ELECTRONIC AGREEMENT ON YOUR OWN BEHALF AND ON BEHALF OF THE ACCOUNT HOLDER LISTED IN THE ACCOUNT CREATION, SIGN UP OR SIMILAR FORM (“REGISTRATION FORM”). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE ENTITY THAT YOU WORK FOR AND YOURSELF TO THESE TERMS OF SERVICES. IF YOU DO NOT AGREE TO THESE TERMS AND DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, DO NOT, ACCESS, OR USE THE SERVICES (AS DEFINED IN THE TERMS OF SERVICES).
These Terms of Service (“Agreement” or “Terms & Conditions” or “Terms of Service”) are a contract between you individually, the legal entity that you practice under (individually and collectively, “you” or “your”) and Tidemark VA Services, LLC (“Tidemark VA Services” or “Us” or “We”) and govern your use of Tidemark VA Services’s website (www.tidemarkva.com), and any affiliated sub-domains and mobile applications and sites), Software, and Servers (hereinafter collectively the “Service”), your rights and obligations with respect to User Data that you place in the Service, and associated Intellectual Property Rights thereto, as well as your creation of an account by which you will access the Service, (hereinafter an “Account”) for use in connection with the Service. By accessing, using, subscribing, purchasing, or downloading the Services, or any goods, materials, or content from the Website, you agree to follow and be bound by the following terms and conditions and any other terms and conditions embodied in any other agreements you enter into with us. If you do not agree with the Terms & Conditions, you may not use the Website or the Services.
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH US. PLEASE READ IT CAREFULLY.
These Terms of Service apply to ALL transactions made on or through the Website and which uses the Services. This Agreement is governed by the Electronic Signatures in Global and National Commerce Act. You and the account owner manifest your agreement to these Terms of Service by any act demonstrating your assent thereto, including clicking any button containing the words “I agree”, “Start my free trial”, “Join my team”, “Create my account” or similar syntax, by accessing the Website, by establishing an account, or using the Services, whether you have read these terms or not. On clicking any such button you agree to these Terms of Service. You should print a copy of this Agreement for your personal records. This Agreement may be modified by Tidemark VA Services effective immediately by notifying you as provided in Section 30 below. By continuing to access or use the Service after the effective date of any such change, you agree to be bound by the modified Terms of Service.
1. Definitions
“Website” means the websites and services available from the domain and sub-domains www.tidemarkva.com
“Tidemark VA Services Software” or “Software” is the software provided to you by Tidemark VA Services and/or its suppliers under license or with respect to which you have access, in connection with the Service;
“Servers” are the online environments that support the Service;
“User Data” means any data or images that you or your clients or patients upload, stream or submit to the Servers, Website, or other areas of the Service, or generated or collected on your behalf from the Services, Website, the Service or third parties, including but not limited to Protected Health Information as that term is defined below, video, image and sound data and Transaction Data;
“Intellectual Property Rights” means copyrights, trademarks, service marks, trade dress, publicity rights, database rights, patent rights, and other intellectual property rights or proprietary rights recognized by law;
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996;
“Protected Health Information” or “PHI” means protected health information as defined by HIPAA’s Privacy Rule found at 45 C.F.R. ¤ 160.103; and
“Payment Data” means any personal or financial information collected from a credit card, debit card or other payment method, including but not limited to a cardholder’s account number, card expiration date, and CVV2.
“Transaction Data” means customer information, User Data, Payment Data, transaction information, bank information and credit card information including without limitation tokenized account information, tokens and token access codes, account information or other data or information of any kind that is provided by or generated or collected on your behalf, or your patients or client by the Service.
“Stripe Payment Processing Services” are services that enable the acceptance of payments, management of subscriptions, and performance transaction reporting, as well as analytics and other business services.
“Dispute” will have the broadest meaning possible and means any dispute, action, or other controversy between you and Tidemark VA Services relating to the Website/Software/Service, any transaction or relationship between you and Tidemark VA Services resulting from your use of the Website/Software/Service, communications between you and Tidemark VA Services, or this Agreement – whether in contract, warranty, tort, laws, or regulations.
2. Verification for Tidemark VA Services
By accepting this Agreement in connection with an Account, you represent that you are at least 18 years of age, or the legal age of majority where you reside if that jurisdiction has an older age of majority, and you have the legal authority to enter into this Agreement. You further agree that as a condition to accessing the Website and the Service, you will submit to account verification as required by Tidemark VA Services, and provide only true and accurate identification documentation to Tidemark VA Services or its third party service providers as requested by Tidemark VA Services. You and the account owner are responsible for the security of any account verification information, such as usernames and passwords.
3. Establishing an Account
You must establish an Account with Tidemark VA Services to use the Service. Only one person may be an Account Owner, who can grant access to the account to other account users who are employed by or are contracted to your practice. You agree to provide accurate, current, and complete information about yourself (“Registration Data”) as prompted by the Registration Form and to use the account management tools provided to keep your Registration Data accurate, current and complete. Tidemark VA Services will assign to You, as account owner, an account name (your “Account Name”). You and your users must each choose a username to identify yourselves under the Account Name.
4. Responsibility for Use of Account
You, as the account owner, are responsible for all activities conducted through your Account. You, as an account user, are responsible for all activities conducted through your username. In the event that fraud, violation of law, regulation or rule, or conduct that violates this Agreement occurs (whether by you or someone else) that is in any way, connected with your Account, we may suspend or terminate your use and your Account as described in Section 21 and you shall be financially responsible to Tidemark VA Services for the consequences of such use.
5. Selection and Use of Account Password
At the time your Account is created, you must select a password. You are responsible for maintaining the confidentiality of your password and are responsible for any damages, claims or other harm resulting from your disclosure, or authorization of the disclosure of your password or from any person’s use of your password to gain access to your Account or Account Name. At no time should you respond to an online request for a password other than in connection with the log-on process to the Service. Your disclosure of your password to any other person is at your own risk.
6. Fees and Billing
Tidemark VA Services provides the Service for the fees and other charges set forth on our Website. We may at any time add new services for additional fees and charges, or prospectively modify fees and charges for existing services. You acknowledge that it is your responsibility to ensure payment in advance for all paid aspects of the Service, and to ensure that your credit or debit cards or other payment instruments accepted by Tidemark VA Services continue to be valid and sufficient for such purposes. We may suspend or terminate your use and your Accounts use, as provided in Section 21 in the event of any payment delinquency. Other services are available from Tidemark VA Services and the agreement with respect to those services and fees due to Tidemark VA Services incorporate by reference these Terms of Service as well as any specific terms and conditions presented to you.
7. Modification of Service
Tidemark VA Services reserves the right to add, modify, or eliminate aspect(s), features or functionality of the Service from time to time for the purposes of compliance with applicable laws and regulations, to effect improvements in security and functionality, to correct errors, or for any other purposes, at its discretion.
8. Privacy Policy, Protected Health Information, User Data and Use of Your Information, Data Deletion on Termination
Any information (including personally identifiable information and payment account information) you submit to our site is governed by the Privacy Policy and the terms of these Terms of Service. The Privacy Policy encompasses any and all information you may provide to our site either for purposes of creating an account, submitting an inquiry or to receive further information, updates and promotions about or related to the Website or Service. You agree to adhere to the terms and conditions to the Privacy Policy.
It is your responsibility to ensure that you have obtained all necessary consents from your patients and your clients, and that your patients or your clients have agreed to the collection of their User Data (including PHI) through the Website and the Privacy Policy and comply with all applicable laws. We will make no use of PHI that is not permitted by this Agreement or that is prohibited by applicable law, including but not limited to HIPAA. In the event that we receive a subpoena or other legal or court order compelling the disclosure of any of your or your patients’ or clients’ User Data (including PHI) or any of your data, unless ordered to not do so, or unless our legal counsel provides an opinion that prior notification is not authorized, we will notify you of the subpoena or other order prior to disclosing the PHI or other data to provide you with an opportunity to intervene or otherwise prevent the disclosure through applicable legal process. We will make commercially reasonable efforts to maintain the Service in a manner that includes appropriate administrative, technical, and physical security measures designed to protect the confidentiality, availability, and integrity of PHI that is in our possession, as required by HIPAA.
In the event of termination of this Agreement, whether by your cancellation of the Agreement, your breach of, or as otherwise provided in this Agreement, there is an export feature in the Service which will enable you to retrieve your User Data contained within the Service prior to the account termination date. It is your responsibility to export from your account a file or files containing the User Data contained within the Service before the account termination date, after which Tidemark VA Services will destroy the User Data for your account.
9. No Responsibility for Acts of Omissions of Third-Party Websites
The Service may contain links to, or otherwise allow connections to, third-party websites, servers, and online services or environments that are not owned or controlled by Tidemark VA Services. You agree that Tidemark VA Services is not responsible or liable for the content, policies, or practices of any third-party websites, servers, or online services or environments. Please consult any applicable terms of use and privacy policies provided by the third party for such websites, servers, or online services or environments.
10. Your Rights and Obligations with Respect to You and Your Clients’ Data
In connection with User Data you upload or submit to the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize Tidemark VA Services to use the User Data in the manner contemplated by the Service and this Agreement. You agree that by uploading or submitting any Content to or through the Servers, Website, or other areas of the Service, and permitting your clients to upload any Transaction Data into the Service, you hereby automatically grant Tidemark VA Services (and its affiliates) a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, and display the User Data and Transaction Data (including User Data and Transaction Data that is created, collected or generated by the Service or Tidemark VA Services using the User Data and Transaction Data you submit) solely for the purposes of providing the Service. You agree that the license includes the right to copy, analyze and use any of your User Data and Transaction Data as Tidemark VA Services may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section is referred to as the “Service Data License.” You also acknowledge that the Service Data License granted to Tidemark VA Services with respect to your Content will survive the termination of your Account to permit Tidemark VA Services: (i) to retain server copies of particular instances of your User Data, including copies stored in connection with back-up, debugging, and testing procedures; and (ii) to enable the exercise of the licenses granted in this Section for any other copies or instances of the same User Data that you have not specifically deleted from the Service. Notwithstanding anything to the contrary herein, or in any payment processing agreement between you and the payment processor, you also hereby provide Tidemark VA Services (and its affiliates) an irrevocable perpetual license, authority, license and permission to obtain, copy, use, at Tidemark VA Services’s request, without notice to you, from payment processors, banks, card and ACH processors and gateway provider, which support the Service, all of your Transaction Data and User Data for purpose of providing you the Service.
11. Interruption of Service
Tidemark VA Services may on occasion need to interrupt the Service, with or without prior notice, to protect the integrity or functionality of the Service or for maintenance purposes. You agree that Tidemark VA Services will not be liable for any interruption of the Service (whether intentional or not), and you understand that you will not be entitled to any refunds of fees or other compensation for interruption of service. Likewise, you agree that in the event of loss of any User Data, we will not be liable for any purported damage or harm arising therefrom.
12. Tidemark VA Services’s Intellectual Property Rights and Limited License Granted to You
Tidemark VA Services owns Intellectual Property Rights in and to the Service, except all User Data, including the Tidemark VA Services Software, the Websites, and the Servers, and in and to our trademarks, service marks, trade names, logos, domain names, taglines, and trade dress (collectively, the “Tidemark VA Services Marks”). You understand that such Intellectual Property Rights are apart from any rights you may have in User Data you upload or submit to the Service, as discussed above. You acknowledge and agree that Tidemark VA Services and its licensors own all right, title, and interest in and to the Service, including all Intellectual Property Rights therein, other than with respect to User Data. Except as expressly granted in this Agreement, all rights, title, and interest in and to the Service, except all User Data, and in and to the Tidemark VA Services Marks are reserved by Tidemark VA Services. Copyright, trademark and other laws of the United States and foreign countries protect the Service and the Tidemark VA Services Marks.
Tidemark VA Services hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited, revocable license to access and use the Service as set forth in these Terms of Service and expressly conditioned upon your Account remaining active, in good standing, and in full compliance with these Terms of Service. You agree that you will not (i) allow any person or entity not authorized by Tidemark VA Services to use or access the Software, (ii) attempt to copy any ideas, features, functions or graphics contained in the Service; (iii) use the Tidemark VA Services Software in the operation of a service bureau, an application service provider or for any other purpose intended to benefit a party other than you, (iv) alter or modify the Tidemark VA Services Software, (v) sell, assign, sublicense, rent, lease or otherwise transfer the Tidemark VA Services Software or any rights in connection therewith, or (vi) attempt to translate, disassemble, decompile, reverse assemble, reverse engineer all or any part of the Service or otherwise attempt to derive the source code for the Software.
Mobile Application License
Subject to your compliance with these Terms & Conditions, Tidemark VA Services grants you a limited non-exclusive, non-transferable license to use the Tidemark VA Services mobile application and to access the Website via a single mobile device or computer that you own or control and to run such copy of Tidemark VA Services mobile application solely for your own personal use.
You shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Tidemark VA Services mobile application in any way; (ii) modify or make derivative works based upon the Website or Tidemark VA Services mobile application; (iii) create Internet “links” to the Website or “frame” or “mirror” the Tidemark VA Services mobile application on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Tidemark VA Services mobile application in order to (a) design or build a competitive product or service, (b) design or build a product using similar ideas, features, functions or graphics of the Website or Tidemark VA Services mobile application, or (c) copy any ideas, features, functions or graphics of the Website or Tidemark VA Services mobile application; or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Website or Tidemark VA Services mobile application.
Downloaded Mobile Sourced Application
With respect to any application accessed through or downloaded from any mobile or device application site or store (“Mobile Store Sourced Application”), you agree that you will use the Mobile Store Sourced Application only as permitted by the “Usage Rules” set forth in the applicable Mobile Store Terms of Service. With respect to any Mobile Store Sourced Application used with the Tidemark VA Services Telehealth Service, you also agreed to the terms and conditions in the Telehealth section of these terms of service. Tidemark VA Services reserves all rights in and to the application not expressly granted to you under these Terms & Conditions. You acknowledge and agree that: (i) these Terms & Conditions are valid between you and Tidemark VA Services only, and not the mobile application download site (the “Mobile Store”); and(ii) Tidemark VA Services, not the Mobile Store, is solely responsible for the Mobile Store Sourced Application and content thereof. Your use of the Mobile Store Sourced Application must comply with the Apple Mobile Terms of Service. You acknowledge that the Mobile Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile Store Sourced Application. In the event of any failure of the Mobile Store Sourced Application to conform to any applicable warranty, you may notify the Mobile Store but the Mobile Store will have no warranty obligation whatsoever with respect to the Mobile Store Sourced Application. As between Tidemark VA Services and the Mobile Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Tidemark VA Services. You acknowledge that, as between Tidemark VA Services and the Mobile Store, the Mobile Store is not responsible for addressing any claims you have or any claims of any third party relating to the Mobile Store Sourced Application or your possession and use of the Mobile Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Mobile Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third party claim that the Mobile Store Sourced Application or your possession and use of that Mobile Store Sourced Application infringes that third party’s intellectual property rights, as between Tidemark VA Services and the Mobile Store, Tidemark VA Services, not the Mobile Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. Without limiting any other provisions of these Terms & Conditions, you must comply with all applicable third party terms of agreement when using the Mobile Store Sourced Application.
Your Responsibilities
You are solely responsible for the delivery of healthcare and determining whether you are able and/or permitted to do so based on the patient’s location when using the Service for the telehealth session. For each telehealth session, you are solely responsible for: (a) confirming that you have the necessary licenses, patient connections and qualifications to use the Service to deliver the telehealth session; and (b) providing telehealth healthcare and advice using the Service solely within the scope your licenses, qualifications and applicable regulatory requirements.
YOU ACKNOWLEDGE AND AGREE THAT TIDEMARK VA SERVICES IS SOLELY PROVIDING A TECHNOLOGY PLATFORM AND IS NOT PROVIDING MEDICAL ADVICE OR HEALTHCARE SERVICES. TIDEMARK VA SERVICES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED – AND SHALL HAVE NO LIABILITY OR RESPONSIBILITY – IN CONNECTION WITH ANY HEALTHCARE SERVICES, MEDICAL ADVICE, PRESCRIPTIONS OR MEDICATION RECOMMENDATIONS DELIVERED THROUGH THE SERVICE.
Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using the Tidemark VA Services Telehealth Service. Without limiting the foregoing, you will not:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Service that you are not authorized to access; or
Use the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You may also only upload or otherwise share User Data that you have all necessary rights to disclose. You may not upload, store or share any User Data that:
Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
Contains any private or personal information of a third party, a client or patient, without such third party’s consent;
In addition, although we have no obligation to screen, edit or monitor User Data, we may delete or remove or suspend the use of User Data at any time and for any reason.
By accessing or using the Service, you consent to the processing, transfer and storage of information about you in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.
13. Intellectual Property Rights of Third Parties
You agree that you will not upload, publish, or submit to any part of the Service any User Data that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless you are the owner of such rights or have permission from the rightful owner to upload or submit the User Data and to grant Tidemark VA Services all of the license rights granted in this Agreement. You agree that Tidemark VA Services will have no liability for, and you agree to defend, indemnify, and hold Tidemark VA Services harmless for, any claims, losses or damages arising out of or in connection with your use of any User Data.
14. Prohibited Conduct While Using the Service
You agree that you will not:
Post, display or transmit Data, User Data, or Transaction Data that violates any law, regulation or rule, or the rights of any third party including without limitation Intellectual Property Rights;
Impersonate any person or entity without their consent, or otherwise misrepresent your affiliation;
Post or transmit viruses, Trojan horses, worms, spyware, time bombs, cancelbots, or other computer programming routines that may harm the Service or interests or rights of other users, or that may harvest or collect any data or personal information about other users without their consent;
Engage in malicious, disruptive or other conduct that impedes or interferes with other users’ normal use of the Service; or
Attempt to gain unauthorized access to any other user’s Account, password or User Data, or allow more than one person to use an Account.
15. Violation of terms
Any violation by you of the terms of this Section may result in immediate suspension or termination of your Account without any refund or other compensation.
16. Releases
You agree not to hold Tidemark VA Services liable for the content, actions, or inactions of other users of the Service or of other third parties. As a condition of access to the Service, you release Tidemark VA Services (and its officers, directors, shareholders, agents, subsidiaries, and employees) from claims, demands, losses, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have or claim to have with one or more other users of the Service or with other third parties, including whether or not Tidemark VA Services becomes involved in any resolution or attempted resolution of the dispute. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
17. Disclaimer of Other Express and Implied Warranties
TIDEMARK VA SERVICES WARRANTS THAT DURING THE TERM OF THIS AGREEMENT, THE SOFTWARE WILL FUNCTION IN SUBSTANTIAL CONFORMANCE TO THE SPECIFICATIONS SET FORTH ON THE WEBSITE. TIDEMARK VA SERVICES PROVIDES THE SERVICE, INCLUDING WITHOUT LIMITATION THE SOFTWARE, THE WEBSITES, THE SERVERS, AND YOUR ACCOUNT, STRICTLY ON AN “AS IS” BASIS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO VALUE, EITHER EXPRESS OR IMPLIED, IS GUARANTEED OR WARRANTED WITH RESPECT TO ANY CONTENT. NOTWITHSTANDING ANY INTELLECTUAL PROPERTY RIGHTS YOU MAY HAVE IN YOUR USER DATA OR ANY EXPENDITURE ON YOUR PART, TIDEMARK VA SERVICES AND YOU EXPRESSLY DISCLAIM ANY COMPENSABLE VALUE RELATING TO OR ATTRIBUTABLE TO ANY DATA RELATING TO YOUR ACCOUNT RESIDING ON TIDEMARK VA SERVICES’ SERVERS. YOU ASSUME ALL RISK OF LOSS FROM USING THE SERVICE ON THIS BASIS. Tidemark VA Services does not ensure continuous, error-free, secure or virus-free operation of the Service, the Software, the Websites, the Servers, or your Account, and you understand that you shall not be entitled to refunds or other compensation based on Tidemark VA Services’s failure to provide any of the foregoing other than as explicitly provided in this Agreement. Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to you. Tidemark VA Services does not guarantee that by mere use of the Software you will be in compliance with HIPAA, and you understand and agree that you are responsible for maintaining any other administrative, technical and physical measures required to maintain appropriate information security with respect to your PHI and to otherwise comply with HIPAA.
18. Limitation of Liability
IN NO EVENT SHALL TIDEMARK VA SERVICES OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, SUBSIDIARIES, AGENTS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE OR EXEMPLARY DAMAGES OR DISGORGEMENT OR COMPARABLE EQUITABLE REMEDY, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SERVICE (INCLUDING ITS MODIFICATION OR TERMINATION), THE TIDEMARK VA SERVICES SOFTWARE, THE WEBSITES, THE SERVERS, YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT TIDEMARK VA SERVICES MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT WILL TIDEMARK VA SERVICES’S CUMULATIVE LIABILITY TO YOU EXCEED THE GREATER OF ONE HUNDRED FIFTY DOLLARS (U.S. $150.00). Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is found to be impermissible, such limitation may not apply to you.
19. Indemnification
At Tidemark VA Services’s request, you agree to defend, indemnify and hold harmless Tidemark VA Services, its officers, directors, shareholders, employees, subsidiaries, and agents from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from: (i) any breach or alleged breach by you of these Terms of Service, including without limitation your representations and warranties relating to your data, User Data; (ii) use of the Tidemark VA Services Telehealth Service, or (iii) your acts, omissions or use of the Service, including without limitation your negligent, willful or illegal conduct. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim.
20. Legal Relationship Between You and Tidemark VA Services; No Third Party Beneficiaries
You acknowledge that your participation in the Service, including your creation or uploading of Content in the Service, does not make you a Tidemark VA Services employee and that you do not expect to be, and will not be, compensated by Tidemark VA Services for such activities, and you will make no claim inconsistent with these acknowledgements. In addition, no agency, partnership, joint venture, franchise relationship is intended or created by this Agreement. There are no third party beneficiaries, intended or implied, under this Agreement.
21. Suspension and Termination of Accounts
You may terminate this Agreement by closing your Account at any time for any reason. Subject to Tidemark VA Services’s obligations pursuant to Section 8, in such event, Tidemark VA Services shall have no further obligation or liability to you under this Agreement or otherwise. You may not suspend your own Account. If you suspend your Account, then the Account will be deemed terminated (See Sections 8 and 24 herein, regarding deletion of your User Data on termination). In addition, Tidemark VA Services may suspend or terminate your Account, without notice, for breach if you violate this Agreement, or any terms regarding payment of required fees and charges due under this Agreement. Tidemark VA Services may, at its sole discretion, provide You a grace period prior to termination, in the event of your breach or failure to pay fees and charges, without waiving its rights hereunder to terminate immediately upon such events. We may suspend or terminate your Account if we determine in our discretion that such action is necessary or advisable to comply with legal requirements or protect the rights or interests of Tidemark VA Services or any third party. In such event, you will not be entitled to compensation for such suspension or termination, and you acknowledge Tidemark VA Services will have no liability to you in connection with such suspension or termination.
22. Termination of Licenses Upon Termination of Account
Upon termination of your Account, all licenses granted by Tidemark VA Services to use the Website, Software, and the Service will automatically terminate and all User Data in your Account will be deleted.
23. Liability for Unpaid Fees Upon Termination of Account
Upon termination by You or by Tidemark VA Services of your Account, you will not receive any refund of any amounts previously paid and you will remain liable for any charges incurred or unpaid amounts owed by you to Tidemark VA Services.
24. Survival of Terms After Termination
The following terms will survive any termination of this Agreement: Sections 8, 10, 13, 16 and 19 through 34.
25. Dispute Resolution
In the event of a Dispute between you and Tidemark VA Services (including any dispute over the validity, enforceability, or scope of this dispute resolution provision), other than with respect to claims for injunctive relief, the Dispute will be resolved by binding arbitration pursuant to the rules of the American Arbitration Association Commercial Arbitration Rules. The place of the arbitration shall be in Los Angeles, California. In the event that there is any Dispute between you and Tidemark VA Services that is determined not to be subject to arbitration pursuant to the preceding sentence, you agree to submit in that event to the exclusive jurisdiction and venue of the state and federal courts located in the City and County of Los Angeles, California. You agree that this Agreement and the relationship between you and Tidemark VA Services shall be governed by the Federal Arbitration Act and the laws of the State of California without regard to conflict of law principles or the United Nations Convention on the International Sale of Goods. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s Intellectual Property Rights in any court of competent jurisdiction where the other party resides or has its principal place of business.
Class Action Waiver
Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.
26. Disclaimer of Warranties as to Use Outside of the United States
Tidemark VA Services is a United States-based service. We make no representation that any aspect of the Service is appropriate or available for use outside of the United States or may be used for persons who are not citizens of the United States or residents of other countries. Those who access the Service from other locations are responsible for compliance with applicable local laws. The Software is subject to applicable export laws and restrictions.
27. Assignment of Agreement and Account
You may not assign this Agreement or your Account without our prior written consent. You may not transfer or sublicense any licenses granted by Tidemark VA Services in this Agreement without our prior written consent. We may assign this Agreement, in whole or in part, and all related rights, licenses, benefits and obligations, without restriction, including the right to sublicense any rights and licenses under this Agreement.
28. Integration, Interpretation of Section Headings and Severability
These Agreement and the policies referenced in this Agreement sets forth the entire agreement and understanding between you and Tidemark VA Services with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements or understandings. Tidemark VA Services reserves the right to modify this Agreement and Terms of Service at any time upon notification to you as provided in Section 31. If any future change is unacceptable to you, you should discontinue using the Service. Your continued use of the Service will always indicate your acceptance of this agreement and any changes to it.
You acknowledge that no other written, oral or electronic communications will serve to modify or supplement this Agreement, and you agree not to make any claims inconsistent with this understanding or in reliance on communications not part of this Agreement. The section headings used herein, including descriptive summary sentences at the start of each section, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
29. Notices
Tidemark VA Services may provide notice to you and obtain consent from you (1) through the website at www.Tidemark VA Services.com; (2) by electronic mail at the electronic mail address associated with your Account; and/or (3) by written mail communication to you at the address associated with your Account. You must give all notices required or permitted under this Agreement to Tidemark VA Services, LLC, 305 W. Woodard #213 Denison, TX 75020.
30. No Responsibility for Acts or Omissions of Third Party Service Providers
Tidemark VA Services may refer names of certain third party service providers (“Service Providers”) to you upon your request or in connection with the Service. Any Service Providers referred to you by Tidemark VA Services are not owned or controlled by Tidemark VA Services, and Tidemark VA Services does not receive any commission, fee or other compensation for referring any Service Providers to you. You agree that Tidemark VA Services is not responsible or liable in any way for the acts or omissions of any Service Providers, including, without limitation, any negligent, willful or illegal conduct. You further agree to conduct your own investigation and due diligence regarding any Service Providers referred to you by Tidemark VA Services. You agree to defend, indemnify and hold harmless Tidemark VA Services from all damages, liabilities, claims, expenses and losses relating to the referral of Service Providers to you.
31. Tidemark VA Services Community Terms of Use
Tidemark VA Services users may participate in the Tidemark VA Services Community Site that permits you to communicate with other users. By accessing the Tidemark VA Services Community Site, you agree to the terms of use of the community site in the Tidemark VA Services Community Site.
32. Business Associate Agreement
For purposes of complying with the requirements of HIPAA, you and Tidemark VA Services agree to be bound by each of the terms and provisions of the Business Associate Agreement, which can be found at Business Associate Agreement (baa) and which is incorporated in full by this reference. If any provision hereof is potentially or actually in conflict with the provisions of the Business Associate Agreement with respect to the treatment of Protected Health Information, the terms of the Business Associate Agreement shall prevail.
Tidemark VA Services Terms of Service v1.0 10/9/2019