Terms of Service

Terms of Service

1. PROVISION   OF THE SERVICE.
1.1 Artemis (DBA digiChart, Inc.)will provide the Service to the physicians, nurse   practitioners, nurse midwives and physician assistants (the “Providers”) and   their staff (collectively the “Authorized Users”) in accordance with the   terms and conditions of the client’s Sales Agreement (“Agreement”). During   the term of the Agreement, Artemis (DBA Artemis, Inc.) grants Client and its   Authorized Users a revocable, limited, non-exclusive license to use the   software that is part of the Service (“Software”) via the Internet and only   upon the terms of service contained herein. Artemis (DBA digiChart, Inc.) may   make available additional functionality or change functionality of the   Software or Service from time to time without the prior consent of Client. If   Client elects to subscribe to such additional functionality, Client may incur   charges in addition to those set forth herein. THE SERVICE AND SOFTWARE IS   PROVIDED TO ASSIST THE AUTHORIZED USERS IN PATIENT CARE. AUTHORIZED USERS   SHALL NOT SOLELY RELY ON INFORMATION PROVIDED THROUGH THE SERVICE OR SOFTWARE   OR USE THE SERVICE OR SOFTWARE TO REPLACE THEIR DUTY TO ADHERE TO THE   REQUIRED STANDARD OF CARE IN THE AUTHORIZED USERS’ MEDICAL COMMUNITY OR THEIR   PROFESSIONAL MEDICAL JUDGMENT INCLUDING WITHOUT LIMITATION, WITH RESPECT TO   DECISIONS ABOUT MEDICATIONS, DIAGNOSIS OF DISEASES, DETERMINING TREATMENTS OR   PERFORMING ANY OTHER TASKS THAT CONSTITUTE THE PRACTICE OF MEDICINE.
1.2 Client   may increase or decrease the number of Authorized Users by adding or deleting   log-in accounts for such Authorized Users. Client shall promptly notify Artemis   (DBA digiChart, Inc.) upon terminating any Authorized User from affiliation   with its practice or its association with any Affiliated Personnel. Unless   required by law, Artemis (DBA digiChart, Inc.) will not allow an Authorized   User to access the Service after receiving notice of the Authorized User’s   disassociation from Client.
1.3 Artemis   (DBA digiChart, Inc.) will use and disclose individually identifiable health   information for the provision of the Service to Client and for Artemis (DBA   digiChart, Inc.)’s own internal administrative purposes, including technical   support and maintenance of the Service, in accordance with the Business   Associate Agreement (“BAA”) signed by both Artemis (DBA digiChart, Inc.) and   the Client. In the event of any conflict between the terms of the Sales   Agreement, the BAA, and of the Terms of Service available at www.artemisobgyn.com,   the terms of the Sales Agreement shall control.
1.4 All   title, copyrights, trade secrets and other intellectual property rights in   and to the Software and Service are owned by Artemis (DBA digiChart, Inc.),   and/or its licensors, and the Software and Service’s structure, organization   and code are the valuable trade secrets of Artemis (DBA digiChart, Inc.)   and/or its licensors. Client and Authorized Users acknowledge that no title   to the intellectual property in the Software or Service is transferred to   Client, and that Client does not obtain any rights, express or implied, in   the Software or Service other than the rights expressly granted in the   Agreement. Client and Authorized Users shall not (i) lease, loan, resell or   otherwise distribute the Service or Software to any party that is not an   Authorized User; (ii) use the Service or Software to develop a product or   service which is competitive with any aspect of the Service or Software;   (iii) sublicense to, permit access to, or use of, the Software or Service by   unauthorized third parties; or (iv) use the Software or Service for the   processing of information other than Client and its patients information. Use   of the Service by a party other than an Authorized User shall be grounds for   immediate termination of the Agreement under Section 11.2 hereof. Client   covenants that it will monitor use of the Service to ensure that only Authorized   Users shall use the Service and shall immediately report to Artemis (DBA   digiChart, Inc.) any use of the Service or the Software not authorized by the   Agreement.
1.5 Any and   all user materials provided to the Client are solely to support the Client’s   internal use of the Service and Software. The user materials contain   proprietary information of Artemis (DBA digiChart, Inc.), and distribution of   the user materials to unauthorized third parties is expressly prohibited and   shall be considered a material breach of the Agreement. Client is responsible   for ensuring that the user materials are used by Authorized Users only as   permitted under the Agreement. Client, at no additional cost, may reproduce   user materials provided that (i) the number of such copies are limited to   those reasonably required for authorized use of the Service and Software,   including training and archival purposes; and (ii) all proprietary notices   contained in the original copies of the user materials are reproduced and   included in all copies, whether such copies are made in whole or in part.
1.6 If   necessary, Artemis (DBA digiChart, Inc.) will develop, with assistance from   Client, a software interface to integrate the Software and a third party   vendor’s software and/or hardware in accordance with the Agreement (the “Artemis   (DBA digiChart, Inc.) Interface”). The Artemis (DBA digiChart, Inc.)   Interface shall be the sole property of Artemis (DBA digiChart, Inc.), and   Client shall have no proprietary or other intellectual property rights or   interests therein except to use the Artemis (DBA digiChart, Inc.) Interface   in conformity with the rights granted in the Agreement.
1.7 Provided   Client is current in the payment of any fees due and has complied with all of   the terms and conditions required under the Agreement, Artemis (DBA   digiChart, Inc.) shall provide Client with software maintenance services   pursuant to the Client’s Service Level Agreement (SLA).
1.8 Artemis   (DBA digiChart, Inc.) may provide Client’s patients limited access to online   patient history forms. Artemis (DBA digiChart, Inc.) does not make any   representation or warranties with regard to the accuracy or completeness of   information provided by Client’s users or patients in the entry of such data.
1.9 The   American Medical Association (“AMA”) and Medicode have developed CPT codes   and ICD-9 codes that are valuable assets, trade secrets, trademark and/or   copyrighted materials licensed to Artemis (DBA digiChart, Inc.) (the   provision of updated versions of which is dependent upon a continuing   contractual relationship with the AMA). Artemis (DBA digiChart, Inc.) has   entered into a CPT License Agreement (“Primary Agreement”) with the   AMA. As a sub-licensee of the Primary Agreement, Client and any Authorized   User of the CPT codes agree to comply with the terms of the Primary   Agreement. CPT codes are commercial technical data that were developed   exclusively at private expense by the AMA, 515 North State Street , Chicago ,   Illinois 60610 . Artemis (DBA digiChart, Inc.), its subcontractors, the AMA,   Medicode, and any other party involved in the creation, production and   delivery of the Service do not warrant the CPT codes and ICD-9 codes will   meet Client’s requirements. Client acknowledges that the CPT codes and ICD-9   codes utilized therein have not been developed according to Client’s   specifications or otherwise custom-made. Artemis (DBA digiChart, Inc.), its   subcontractors, the AMA, Medicode, and any other party involved in the   creation, production and delivery of the Service disclaim responsibility for   any consequences attributable to or related to any uses, non-use or   interpretation of information contained in or not contained in the CPT codes   and ICD-9 codes. In no event shall Artemis (DBA digiChart, Inc.), its   subcontractors, the AMA, Medicode, and any other party involved in the   creation, production and delivery of the Service be liable to Client for any   damages, including incidental and consequential damages, including any lost   profits, lost savings, fines or penalties imposed by the Health Care   Financing Administration, other state or federal agency charged with   administering the Medicare program, or any third party, or other incidental   or consequential damages arising out of the use or inability to use the CPT   codes and ICD-9 codes, even if Artemis (DBA digiChart, Inc.), its   subcontractors, the AMA, Medicode, and any other party involved in the   creation, production and delivery of the Service has been advised of the   possibility of such damages, or for any claim by any other party. CPT is a   registered trademark of the AMA and ICD-9 is a registered trademark of   Medicode.
2. WITHDRAWAL   OF ACCESS. Artemis (DBA digiChart, Inc.) reserves the right to withdraw   Client’s and Authorized Users’ access to the Software and Service and   terminate Authorized User’s and Client’s license and use of the Software if:   (a) Client fails to pay any fees due hereunder within a period of sixty (60)   days from the written invoice date; or (b) the Agreement is terminated for   any reason.
3. CONFIDENTIALITY.
3.1 “Confidential   Information” means: (i) the object and source codes and documentation for the   Software, (ii) user training materials, (iii) workflow processes and   operational processes, and (iv) information of Artemis (DBA digiChart, Inc.)   which derives value from not being generally known.
3.2 Client   shall not disclose the Confidential Information except to those persons   having a need to know. Client shall take appropriate action, by instruction   to or agreement with its employees, agents and subcontractors, to maintain   the confidentiality of the Confidential Information. Client shall promptly   notify Artemis (DBA digiChart, Inc.) in the event that Client learns of an   unauthorized release of Confidential Information.
3.3 Client   shall have no obligation with respect to:
(a) Confidential   Information made available to the general public without restriction by Artemis   (DBA digiChart, Inc.) or by an authorized third party;
(b) Confidential   Information known to Client, without restriction, independently of   disclosures by Artemis (DBA digiChart, Inc.) under the Agreement;
(c) Confidential   Information independently developed by Client; or
(d) Confidential   Information that Client may be required to disclose pursuant to subpoena or   other lawful process; provided, however, that Client notifies Artemis (DBA   digiChart, Inc.) in a timely manner to allow Artemis (DBA digiChart, Inc.) to   appear and protect its interests.
3.4 In the   event of termination of the licenses granted in the Agreement Client shall   (i) immediately cease to use the Confidential Information, (ii) return to Artemis   (DBA digiChart, Inc.) or certify the destruction of the Confidential   Information and all copies thereof within ten (10) days of the termination,   unless otherwise provided in the Agreement and (iii) upon request, certify in   writing to Artemis (DBA digiChart, Inc.) that it has complied with its   obligations set forth in this Section.
3.5 The   parties acknowledge that monetary remedies may be inadequate to protect Artemis   (DBA digiChart, Inc.)’s rights in the Confidential Information and that, in   addition to legal remedies otherwise available, injunctive relief is an   appropriate judicial remedy to protect such rights.
3.6 Client   agrees to provide reasonable assistance and cooperation upon the request of Artemis   (DBA digiChart, Inc.) in connection with any litigation against third parties   to protect the Confidential Information.
4 HIPPA   COMPLIANCE. Terms of HIPAA compliance are addressed in a separate HIPAA   Business Associate Agreement between the Client and Artemis (DBA digiChart,   Inc.).
5 INDEMNITY.
5.1 Client   shall indemnify and hold Artemis (DBA digiChart, Inc.), and its directors,   officers, employees and agents (“indemnitees”) harmless against all actions,   claims and demands (including the cost of investigating, defending or   settling any action, claim or demand including but not limited to reasonable   attorneys’ fees and litigation costs) which may be made, threatened to be made,   or instituted against the Indemnities arising out of: (i) a breach of the   Agreement by Client; (ii) breach of the representation regarding authority to   bind the Client’s practice and its physicians or other Authorized Users;   (iii) any dispute between an Authorized User and Client regarding access or   ownership of patient information; (iv) any medical malpractice claim, tort   claim, statutory claim or other claim against the Indemnities arising out of   the Agreement; or (v) the negligence of Client.
5.2 Artemis   (DBA digiChart, Inc.) agrees to indemnify and hold Client harmless from all   settlements agreed to by Artemis (DBA digiChart, Inc.) and all costs and   direct damages awarded to a third party to the extent they arise out of a   claim that the Software or Services, as provided hereunder to Client,   infringes a U.S. copyright, U.S. patent or trade secret under U.S. law. Such   obligation is subject to the following conditions (i) Client shall notify Artemis   (DBA digiChart, Inc.) in writing within fifteen (15) days of the date Client   first becomes aware of a claim; (ii) Artemis (DBA digiChart, Inc.) has sole   control of the settlement, compromise, negotiation and defense of any such   action; and (iii) Client and Authorized Users give Artemis (DBA digiChart,   Inc.) all reasonably available information, assistance and authority, to   defend against such action. If an infringement action described above were to   occur, Artemis (DBA digiChart, Inc.) may remedy the situation, at its option,   by either: (i) obtaining the right to continued use of the Software or   Service, (ii) substituting other reasonably equivalent software or service,   (iii) modifying the Software or Service, so it is no longer infringing, or   (iv) terminating Client’s right to the allegedly infringing Software and   Service and refunding the amount which Client has paid for such Software or   Service. The foregoing indemnity shall not apply to any infringement claim   arising from use of the Software or Service in conjunction with other   software or hardware where use with such other software or hardware gives   rise to an infringement claim. THE FOREGOING STATES CLIENT’S SOLE AND EXCLUSIVE   REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY   RIGHTS OF ANY KIND. DIGICHART EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF   NONINFRINGEMENT.
5.3 Artemis   (DBA digiChart, Inc.) agrees to indemnify and hold Client harmless from all   settlements agreed to by Artemis (DBA digiChart, Inc.) and all costs and   direct damages awarded to a third party to the extent they arise out of a   claim that the Software or Services, as provided hereunder to Client,   infringes a U.S. copyright, U.S. patent or trade secret under U.S. law. Such   obligation is subject to the following conditions (i) Client shall notify Artemis   (DBA digiChart, Inc.) in writing within fifteen (15) days of the date Client   first becomes aware of a claim; (ii) Artemis (DBA digiChart, Inc.) has sole   control of the settlement, compromise, negotiation and defense of any such   action; and (iii) Client and Authorized Users give Artemis (DBA digiChart,   Inc.) all reasonably available information, assistance and authority, to   defend against such action. If an infringement action described above were to   occur, Artemis (DBA digiChart, Inc.) may remedy the situation, at its option,   by either: (i) obtaining the right to continued use of the Software or   Service, (ii) substituting other reasonably equivalent software or service,   (iii) modifying the Software or Service, so it is no longer infringing, or   (iv) terminating Client’s right to the allegedly infringing Software and   Service and refunding the amount which Client has paid for such Software or   Service. The foregoing indemnity shall not apply to any infringement claim   arising from use of the Software or Service in conjunction with other   software or hardware where use with such other software or hardware gives   rise to an infringement claim. THE FOREGOING STATES CLIENT’S SOLE AND   EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY   RIGHTS OF ANY KIND. DIGICHART EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF   NONINFRINGEMENT.
6 WARRANTY   / DISCLAIMER. OTHER THAN DIGICHART’S OBLIGATION IN THE SERVICE LEVEL   AGREEMENT TO USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN CERTAIN UPTIME AVAILABILITY   FOR THE SERVICE, THE SERVICE AND SOFTWARE ARE LICENSED AND PROVIDED “AS IS.”   NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SERVICE OR SOFTWARE USAGE,   THAT THE SOFTWARE OR SERVICE WILL OPERATE ERROR FREE OR WITH RESPECT TO THE   COMPATIBILITY OF CO-OPERATING SOFTWARE, OF ANY INTERCONNECTED INTERNET   SERVICE OR CLIENT COMPUTER CONNECTED TO THE SERVICE. NO ORAL ADVICE OR   WRITTEN INFORMATION GIVEN BY CLIENT, DIGICHART, OR THEIR RESPECTIVE EMPLOYEES   AND AGENTS SHALL CREATE A WARRANTY; NOR SHALL CLIENT RELY ON ANY SUCH   INFORMATION OR ADVICE. THE WARRANTIES STATED WITHIN THE AGREEMENT ARE   EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,   INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND   FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF   DEALING OR COURSE OF PERFORMANCE.
7 LIMITATION   OF LIABILITY
7.1 UNDER   NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE,   INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING BUT NOT   LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR LOSS OR INACCURACY OF ANY DATA   OR PATIENT INFORMATION, FAILURE TO REALIZE EXPECTED SAVINGS THAT RESULT FROM   THE USE OR INABILITY TO USE THE SERVICE OR SOFTWARE, THAT RESULT FROM   MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS,   DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF   PERFORMANCE, WHETHER OR NOT LIMITED TO EVENTS OF FORCE MAJEURE,   COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO   RECORDS, PROGRAMS, OR SERVICES. THIS SECTION WILL APPLY EVEN IF A PARTY HAS   BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT   ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH   STATES, ANY LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY   LAW.
7.2 EXCEPT   WITH RESPECT TO THE REMEDIES UNDER THIS SECTION, DIGICHART’S AND ITS   OFFICER’S, EMPLOYEE’S, DIRECTOR’S, OR SUBSIDIARIES’, LIABILITY FOR DAMAGES   FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO THE AGREEMENT, OR THE   LICENSING, DELIVERY, USE OR PERFORMANCE OF THE SOFTWARE OR SERVICES PROVIDED   UNDER THE AGREEMENT OR ANY BREACH OF THE AGREEMENT, WHETHER BASED ON AN   ACTION OR CLAIM IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY   OR WARRANTY, SHALL NOT EXCEED THE FEES PAID BY CLIENT HEREUNDER TO DIGICHART.
8 SURVIVABILITY.   Sections 3 through 7 shall remain in full force and effect following the   expiration or termination of this Agreement.
9 ENTIRE   AGREEMENT. The Agreement, with its signature page, attachments or   exhibits, these TOS, any mutually signed Amendments, the applicable SLA, and   the mutually signed HIPAA BAA constitute the entire agreement between the   parties and supersedes all prior representations, agreements, statements and   understandings, whether verbal or in writing. The Terms of Service or Service   Level Agreement are subject to change. It is expressly agreed that if any   inconsistency in terms of the different documents that constitute the entire   Agreement are found to exist, then the terms in the Agreement supersede all   others.
10 WAIVER. No   term of the Agreement or these Terms of Service shall be deemed to be waived   except by notice in writing signed by each party. Any failure by a party to   enforce any section of this Agreement or these Terms of Service, or any   forbearance, delay or indulgence granted by a party to the other party, will   not be construed as a waiver of the party’s rights under this Agreement.
11 SEVERABILITY. If   any provision of this Agreement is held invalid, unenforceable or illegal for   any reason, the Agreement shall remain otherwise in full force apart from   such provisions which shall be deemed deleted.
12 NO   THIRD PARTY BENEFICIARY. Nothing express or implied in the Agreement   is intended to confer, nor shall anything herein confer, upon any patient or   person other than Client, Authorized Users and Artemis (DBA digiChart, Inc.)   and their respective successors or assigns, any rights, remedies, obligations   or liabilities whatsoever.
13 GOVERNING   LAW – JURISDICTION/VENUE. THE AGREEMENT SHALL BE BINDING WHEN ACCEPTED   IN WRITING BY DIGICHART AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF   TENNESSEE. CLIENT AND AUTHORIZED USERS AGREE THAT THE COURTS OF THE STATE OF   TENNESSEE FOR WILLIAMSON COUNTY OR ANY FEDERAL DISTRICT COURT HAVING   JURISDICTION IN THAT COUNTY SHALL HAVE JURISDICTION AND SHALL BE THE PROPER   LOCATION FOR THE DETERMINATION OF ALL DISPUTES ARISING UNDER THE AGREEMENT.   CLIENT AND AUTHORIZED USERS WAIVE TRIAL BY JURY IN ANY ACTION BETWEEN THE   PARTIES. ANY CAUSE OR ACTION AGAINST DIGICHART ARISING OUT OF OR IN   CONNECTION WITH THE AGREEMENT OR ANY ATTACHMENT OR OTHER AGREEMENT EXECUTED   IN CONNECTION HEREWITH SHALL BE INSTITUTED AND SERVED UPON DIGICHART NOT   LATER THAN EIGHTEEN (18) MONTHS FOLLOWING THE OCCURRENCE OF THE FIRST EVENT   GIVING RISE THERETO.