If you do not agree with the Terms, you must not accept the Terms and may not use the System.
1. Definitions. For purposes of the Terms, the terms set forth in this section have the meanings assigned to them below. Terms not defined herein (whether or not capitalized) have the definitions given them in HIPAA, unless the context requires otherwise:
“BestNotes” means BestNotes, LLC, an Idaho limited liability company.
“Confidential Information” means any information concerning BestNotes’s business, financial affairs, current or future products or technology, trade secrets, workforce, Users, or any other information that is treated or designated by BestNotes as confidential or proprietary, or would reasonably be viewed as confidential or as having value to BestNotes’s competitors. Confidential Information shall not include information that BestNotes makes publicly available or that becomes known to the general public other than as a result of a breach of an obligation by you. Confidential Information does not include individuals’ health information.
“Health Information” means demographic and health information, including without limitation individually identifiable health information and protected health information.
“HIPAA” means the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996, and the regulations promulgated thereunder, including without limitation the Privacy Rule.
“Privacy Rule” means the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E.
“System” means the online system operated by BestNotes, including without limitation all websites, hardware, software, and documentation used or provided by BestNotes in connection therewith.
“Users” means you and other users of the System that have been authorized to access the System.
“User Account” means a unique user account assigned to an individual User in the System.
2. Access to and Use of the System.
2.1 Permitted Uses. Subject to the Terms, and provided that you have been assigned a User Account that has not been terminated, BestNotes grants you a personal, non-transferable, non-sublicensable right and license to access and use the System. Notwithstanding the foregoing, except as expressly authorized in the Terms: (i) you may not use the System to access Protected Health Information other than Protected Health Information pertaining to individuals (a) with whom you have a treatment relationship, (b) that have a treatment relationship with a provider that has requested a professional consultation from you with respect to such individuals, or (c) that have authorized you to access their health information; and (ii) for payment purposes you may use only the minimum necessary information. In addition:
2.1.1 You will not reproduce, publish, or distribute content in connection with the System that infringes any third party’s trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right.
2.1.2 You will not provide content to BestNotes, in connection with any modifications or additions to the System that you request and that BestNotes agrees to provide, including without limitation for the purpose of having any such content copied, modified, incorporated, or otherwise processed for Your use in the System, that infringes any third party’s trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right.
2.1.3 You will not: (a) abuse or misuse the System, including without limitation gaining or attempting to gain unauthorized access to the System and altering or destroying information in the System except in accordance with accepted practices; (b) using the System in such a manner that interferes with other Users’ use of the System; or (c) using the System in any manner that violates the Terms.
2.1.4 You will not place or allow to be placed in the System any information that you know or have reason to believe is false or materially inaccurate.
2.1.5 You will not: (a) make the System, in whole or in part, available to any other person, entity, or business except as expressly authorized by BestNotes; (b) copy, reverse engineer, decompile, or disassemble the System, in whole or in part, or otherwise attempt to discover the source code to the software used in the System; or (c) modify the System or associated software or combine the System with any other software or services not provided or approved by us. You will obtain no rights to the System except for the limited rights to use the System expressly granted by the Terms.
2.2 Compliance with Terms. You will at all times comply with the Terms.
2.3 Compliance with Law. You will comply with all applicable laws, including without limitation laws relating to maintenance of privacy, security, and confidentiality of patient and other Health Information and the prohibition on the use of telecommunications facilities to transmit illegal, obscene, threatening, libelous, harassing, or offensive messages or otherwise unlawful material. You will not undertake or permit any unlawful use of the System, or take any action that would render the operation or use of the System by BestNotes or any other User unlawful. BestNotes offers no assurance that your use of the System under the terms of the Terms will not violate any law or regulation applicable to you.
2.4 User Account.
2.4.1 You acquire no ownership rights in your User Account, and your User Account may be terminated or changed at any time in BestNotes’s sole discretion.
2.4.2 You will adopt and maintain reasonable and appropriate security precautions to prevent disclosure to or use by unauthorized persons of your User Account. You are responsible for maintaining the confidentiality of your User Account and account password, and are responsible for all activities that occur under your account. You agree to immediately notify BestNotes of any breach or suspected breach of the security of the System of which you become aware, or any unauthorized use or disclosure of information within or obtained from the System, and you will take such action to mitigate the breach or suspected breach as BestNotes may direct, and will cooperate with BestNotes in investigating and mitigating the breach.
2.4.3 You will: (i) provide true, accurate, current and complete information about yourself as prompted by the System’s registration form (such information being the “Registration Data”) and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete.
2.5 Responsibility for Content. You understand that all records, data, messages, prescription and other treatment-related information, and other information and materials in the System (“Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person(s) from which such Content originated. BestNotes reserves the right, but shall have no obligation, to pre-screen, flag, filter, refuse, modify, or move any Content available in the System. You agree that you are responsible for your own conduct and any Content that you create, transmit, or display while using the System and for any consequences thereof.
2.6 System Not Substitute for Professional Knowledge. The System is intended to assist physicians and other healthcare professionals, and is not intended to and does not replace sound clinical judgment in the delivery of healthcare services. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including without limitation any reliance on the accuracy, completeness, or usefulness of such Content. You acknowledge that you may not rely on any Content created by BestNotes or submitted to BestNotes. You are required to review the definitions, functionality, and limitations of the System. BestNotes and its suppliers and licensors disclaim all warranties, whether expressed or implied, including without limitation any warranty as to the quality, accuracy, and suitability of the System and of any Content for any purpose.
2.7 Professional Responsibility. You will be solely responsible for the professional and technical services you provide. BestNotes makes no representations concerning the completeness, accuracy, or utility of the System or any Content, or concerning the qualifications or competence of individuals who placed Content in the System. BestNotes has no liability for the consequences to you or to patients from your use of the Content or the System.
2.8 Cooperation. You will cooperate with BestNotes in the administration of the System, including without limitation providing reasonable assistance in evaluating the System and collecting and reporting data requested by BestNotes for purposes of administering the System.
2.9 General Practices and Limits on Use and Storage. You acknowledge that BestNotes may establish general practices and limits concerning use of the System, including without limitation the maximum number of days that email messages, message board postings or other uploaded Content will be retained by the System, the maximum number of email messages that may be sent from or received by an account on the System, the maximum size of any email message that may be sent from or received by an account on the System, the maximum disk space that will be allotted on BestNotes’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the System in a given period of time. You agree that BestNotes has no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by the System. You acknowledge that BestNotes reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that BestNotes reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
2.10 Indemnification. You agree to indemnify, defend, and hold harmless BestNotes and other Users, and BestNotes’s and their affiliates, officers, directors, and agents, from and against any claim, cost or liability, including without limitation reasonable attorneys’ fees, arising out of: (a) your use of the System; (b) any Content you create, transmit, or display while using the System; (c) any breach by you of any representations, warranties, or agreements contained in the Terms; (d) the actions of any person gaining access to the System under your User Account that adversely affects the System or any information accessed through the System; and (e) your negligent or willful misconduct.
4. Product and Service Notifications. BestNotes may place advertisements concerning the products and services of third parties on the System, so that you see them when you use the System. BestNotes may receive remuneration from the suppliers of these products and services for placing their advertisements. BestNotes may use computerized processes to tailor the advertisements to you or to your use of the system. However, except as expressly permitted under the Terms, BestNotes will not disclose to any third party any information that identifies you to enable the third party to market products or services to you directly.
6. Intellectual Property.
6.1 Confidential Information. You may not disclose BestNotes’s Confidential Information to any other person, and you may not use any Confidential Information except as expressly permitted by the Terms. Except as otherwise provided in the Terms, you may not, without BestNotes’s prior written consent, at any time, directly or indirectly, divulge or disclose Confidential Information for any purpose or use Confidential Information for its own benefit or for the purposes or benefit of any other person. You agree to hold all Confidential Information in strict confidence and to take all measures necessary to prevent unauthorized copying, use, or disclosure of Confidential Information, and to keep the Confidential Information from falling into the public domain or into the possession of persons not bound to maintain its confidentiality. You will promptly advise BestNotes in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information by any person that may come to your attention.
6.2 Custom Development; Suggestions. You agree that all custom development, programming, software, reports, and other data or materials generated or developed by BestNotes in connection with the Terms, including without limitation in response to your request for custom development or integration services or in connection with your suggestions, enhancement requests, recommendations, or other feedback, shall be and remain the property of BestNotes. To the extent that any rights to such materials, under applicable law, do not vest directly in BestNotes, you hereby assign to BestNotes the ownership of all such rights, including without limitation all copyrights, in such materials without the necessity of any further consideration and BestNotes shall be entitled to obtain and hold in its own name all such rights in such materials. To the extent that any such rights to such materials do not vest directly in BestNotes and applicable law prohibits the assignment of such rights to BestNotes, you hereby grant to BestNotes a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to all such rights without the necessity of any further consideration.
6.3 Irreparable Harm. You acknowledge that BestNotes will suffer irreparable harm if you fail to comply with your obligations set forth in this Section 6, and you further agree that monetary damages will be inadequate to compensate BestNotes for any such breach. Accordingly, you agree that BestNotes will, in addition to any other remedies available to BestNotes at law or in equity, be entitled to the issuance of injunctive relief to enforce the provisions hereof, immediately and without the necessity of posting a bond.
6.4 Trademarks. BestNotes, the BestNotes logo, and other BestNotes logos and product and service names are trademarks of BestNotes, LLC (the “BestNotes Marks”). Without BestNotes’s prior written permission, you agree not to display or use in any manner, the BestNotes Marks.
6.5 This Section 6 will survive the termination of the Terms for any reason.
7. Disclaimers, Exclusion of Warranties, and Limitation of Liability.
7.1 Carrier Lines. YOU ACKNOWLEDGE THAT ACCESS TO THE SYSTEM WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES”) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND BestNotes’S CONTROL. BestNotes ASSUMES NO LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT USER’S RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.
7.2 No Warranties. ACCESS TO THE SYSTEM AND THE INFORMATION CONTAINED ON THE SYSTEM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. BestNotes MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BestNotes OR THROUGH OR FROM THE SYSTEM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
7.3 Limitation of Liability. YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SYSTEM OR THE INFORMATION IN THE SYSTEM, INCLUDING WITHOUT LIMITATION INACCURATE OR INCOMPLETE INFORMATION. BestNotes DISCLAIMS ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS AND LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION SERVICE PROVIDERS OR THE SYSTEM. YOU EXPRESSLY AGREE THAT IN NO EVENT SHALL BestNotes BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE, OR LOSS OF INFORMATION OR DATA, WHETHER A CLAIM FOR ANY SUCH LIABILITY OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EVEN IF BestNotes HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.
7.4 Other Users. YOU ACKNOWLEDGE THAT OTHER USERS HAVE ACCESS TO THE SYSTEM. SUCH OTHER USERS HAVING COMMITTED TO COMPLY WITH BestNotes’S TERMS, CONDITIONS, POLICIES, AND PROCEDURES CONCERNING USE OF THE SYSTEM; HOWEVER, THE ACTIONS OF SUCH OTHER USERS ARE BEYOND BestNotes’S CONTROL. ACCORDINGLY, BestNotes DOES NOT ASSUME ANY LIABILITY FOR OR RELATING TO ANY IMPAIRMENT OF THE PRIVACY, SECURITY, CONFIDENTIALITY, INTEGRITY, AVAILABILITY, OR RESTRICTED USE OF ANY INFORMATION ON THE SYSTEM RESULTING FROM ANY USER’S ACTIONS OR FAILURES TO ACT.
7.5 Unauthorized Access; Lost or Corrupt Data. BestNotes IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO ANY DATA, FACILITIES, OR EQUIPMENT BY INDIVIDUALS OR ENTITIES USING THE SYSTEM OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, CORRUPTION, LOSS, OR DESTRUCTION OF ANY DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SYSTEM, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. BestNotes IS NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH BestNotes’S PROVISION OF THE SYSTEM. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
8. Termination. You may discontinue your use of the System at any time. You agree that BestNotes may at any time and for any reason, including without limitation a period of account inactivity or your termination of employment with a customer of BestNotes, terminate your access to the System, terminate the Terms, or suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to the System, your account, or any files or other content contained in your account.
9. Modification. BestNotes may change the System and/or the Terms at any time and from time to time. You agree that BestNotes shall not be liable to you or to any third party for any modification of the System and/or the Terms.
10. Export Controls. You agree to comply with all applicable export and reexport control laws and regulations, including without limitation the Export Administration Regulations maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. If you are in a country outside of the United States, you agree to additionally comply with any local rules regarding online conduct and acceptable content, including without limitation laws regulating the export and reexport of data to and from the United States or such other country.
11. Applicable Law. The interpretation of the Terms and the resolution of any disputes arising under the Terms shall be governed by the laws of the State of Idaho. If any action or other proceeding is brought on or in connection with the Terms, the venue of such action shall be exclusively in Ada County, Idaho.
12. Severability. Any provision of the Terms that shall prove to be invalid, void, or illegal, shall in no way affect, impair, or invalidate any other provision of the Terms, and such other provisions shall remain in full force and effect.
13. Notices. You agree that BestNotes may provide you with notices, including without limitation those regarding changes to the Terms, by e-mail, regular mail, or postings on the System.
14. Waiver. No provision in the Terms shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
15. Complete Understanding. The Terms (including without limitation any policies, guidelines, and amendments that may be presented to your form time to time) constitute the entire agreement between you and BestNotes and govern your use of the System, superseding any prior agreements between you and BestNotes for the use of the System. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other BestNotes services, affiliate services, third-party content, or third-party software.
16. No Third-Party Beneficiaries. Nothing express or implied in the Terms is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever.