Terms and Conditions
1. ACCEPTANCE OF TERMS
Capitalized terms used but not defined in these Support Terms have the meanings given to them in the Software License and Support Agreement, including Exhibit A thereof. In addition, the following defined terms are used herein:
- (a) Software Maintenance Services. Means the support and maintenance services for the Blum Software more fully described below.
- (b) Program Defect or Error. Means a significant deviation between program behavior and the Product Documentation published by Blum Telehealth, which deviation is reproducible by either party.
- (c) Point Release. A Point Release normally consists of defect fixes, error corrections and/or minor changes or enhancements to the applicable software.
- (d) Minor Release. A Minor Release normally includes minor feature and functionality changes or enhancements to the applicable software.
- (e) Major Release. A Major Release normally includes significant feature and functionality changes or enhancements to the applicable software.
- (f) Software Releases. Means any Point Releases, Minor Releases and/or Major Releases that may be provided by Blum Telehealth to Licensee.
Except as permitted by Blum Telehealth, neither you nor third parties within your control will:
(a) copy the Blum Software;
- (b) modify, translate, adapt, alter, or create derivative works from the Blum Software;
- (c) merge the Blum Software with any other software or documentation not otherwise needed for use or integration of the Blum Software;
- (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Blum Software;
- (e) except for purposes of allowing access to Authorized Users, distribute, sublicense, rent, lease or loan the Blum Software to any third party; or
- (f) use the Blum Software to provide outsourcing, service bureau, commercial hosting, or application service provider services to a third party.
5. SCOPE OF SOFTWARE MAINTENANCE SERVICES
- (a) Blum Software. Software Maintenance Services will be provided for versions of the Blum Software then being supported, as further described in paragraph 5(e). Software Maintenance Services include (i) correction of Program Defects and Errors in the Blum Software; and (ii) all Point Releases, Minor Releases and Major Releases for the Blum Software which are made available for general release. Any software (including, but not limited to, Point Releases, Minor Releases and Major Releases) that may be provided from time to time under this Agreement constitute Blum Software and are made available subject to the terms and conditions of the License Agreement.
- (b) Third-Party Licensed Materials. Updates for third-party software and data may be provided subject to payment of additional fees as described in Section 2 of the Blum Software License and Support Agreement. Software Maintenance Services do not apply to third-party licensed materials.
- (c) Standard of Performance. Blum Telehealth will use its commercially reasonable efforts to correct Program Defects or Errors in the Blum Software within a reasonable period of time after Blum Telehealth discovers or is notified of such errors, defects or non-conformities.
- (d) Licensee Obligation. You agree to notify Blum Telehealth promptly of any problems it experiences with the Blum Software and to cooperate with Blum Telehealth as it may reasonably request to reproduce the problem or otherwise assist Blum Telehealth to diagnose the Program Defect or Error. You also agree to allow Blum Telehealth the access to install any and all Blum Software Releases provided by Blum Telehealth under these Support Terms. You are not responsible for the cost associated with implementing the Blum Software Releases, including, but not limited to, any hardware changes that may be required.
- (e) Version Support. Because all Blum Telehealth clients will be upgraded to the latest release version when available, no additional Software Maintenance Services or Technical Support is required.
- (f) Exclusions. Blum Telehealth shall have no obligation under these Support Terms to correct any error, defect or non-conformity in the Blum Software caused by or related to (i) any modification of the Blum Software not performed by or on behalf of Blum Telehealth, including any unapproved changes to configuration and/or scalability; (ii) any misuse of the Blum Software, including use of the Blum Software other than in accordance with the Product Documentation, or damage caused by you or any Authorized User; (iii) any fault in or incorrect use of the hardware, operating system environment or any other software used by you, including the use of or with hardware and/or software environments other that those described in the applicable Product Documentation; or (iv) any alleged defect, error or non-conformity reported to Blum Telehealth that cannot be reproduced or replicated. The Support Terms do not cover, and Blum Telehealth has no obligation to provide, hardware or network support or maintenance or support or maintenance for any third-party software or data.
6. TELEPHONE SUPPORT
- (a) Support Hours. Blum Telehealth will provide Authorized Users with telephone help desk support 24 hours a day, 7 days a week, including Holidays.
- (b) Scope of Services. Help desk services do not cover hardware or network support or any third party software not included in the Telehealth System.
7. SERVICE LOGISTICS
- (a) Remote Access. You agree to establish and maintain remote access to the Blum Software with capabilities sufficient in Blum Telehealth’s reasonable judgment for the purpose of providing Software Maintenance Services and technical support. You shall cooperate with Blum Telehealth to establish and maintain remote access. In the event that remote access is not provided and it is necessary for Blum Telehealth to have access to your computer system, Blum Telehealth may, at its discretion, provide on-site services and you shall reimburse Blum Telehealth for all travel-related expenses incurred in providing on-site services.
- (b) On-Site Service. This Agreement does not include on-site support or maintenance services unless determined by Blum Telehealth to be required. In the event Blum Telehealth performs any Software Maintenance Services or other support at your location or at your request, you shall pay Blum Telehealth for such services at Blum Telehealth’s then-current hourly rate for professional services. You shall also reimburse Blum Telehealth for all reasonable expenses incurred to provide on-site services, including, without limitation, travel and lodging expense.
- (c) Cooperation and Assistance. You agree to cooperate with Blum Telehealth and to provide reasonable access to your data and/or computer system to facilitate Blum Telehealth’s performance of its obligations under this Agreement. Without limiting the generality of the foregoing, you will furnish to Blum Telehealth upon Blum Telehealth’s reasonable request: (i) listings of output and any other data that Blum Telehealth may require or request in order to reproduce any problem and the operating conditions under which such problem occurred; and (ii) information about your use of the Blum Software and your operating and user environment.
8. MINIMUM SYSTEM AND BANDWIDTH REQUIREMENTS
Minimum system and bandwidth requirements and recommendations are identified as:
- 3Mbps up/down
- Intel i5 (quadcore or hyperthreaded) 2.Ghz
- Window 7 pro or better
- Google Chrome Browser (latest build)
- 4MB of RAM (recommend 8MB)
- 64-bit Processor
- 100 Gb HD (solid state preferred)
- Video/Audio inputs
Blum Telehealth reserves the right to change its minimum system requirements and recommendations from time to time. Blum Telehealth shall not be liable for any impairment or degraded performance resulting from the operation of the Telehealth System in an operating environment that does not satisfy the minimum bandwidth requirements then in effect.
- (a) Performance of Services. Blum Telehealth warrants that the services covered by these Support Terms will be performed using reasonable care and skill. Blum Telehealth’s entire liability, and Licensee’s exclusive remedy, for any performance deficiency shall be for Blum Telehealth to escalate the service issue through Blum Telehealth’s service staff and to use its best efforts to correct, cure or otherwise remedy such deficiency.
- (b) Software Performance. Unless otherwise provided in the written Product Documentation accompanying an individual fix or Software Release, all fixes and Software Releases delivered to Customer under these Support Terms are subject to the warranty set forth in Section 7 of the Software License and Support Agreement.
9. Content ownership and Usage Rights
By posting and submitting content to the Site, you grant to Blum Telehealth and warrant you have the right to grant, a non-exclusive, royalty-free, worldwide, irrevocable, transferrable, and perpetual right and license to use in any manner or media now or later developed, for any purpose, editorial, commercial, promotional, advertising, or otherwise, in connection with Blum Telehealth products, services, and other uses of any kind including, but not limited to, the right to translate, display, reproduce, modify, change, adapt, publish, translate, create derivative works, sublicense, distribute, assign and commercialize in whole or in part, without further review or participation from you and without any payment due to you. Blum Telehealth may license or sublicense, in whole or in part, to third parties rights such content as appropriate to distribute, market, or promote such products, services and other uses of any kind. You also agree that we may make such content available to users of the Blum Software or Site who may display and redistribute it in the same way that we make other content available.
10. USER CONDUCT
- (a) to abuse, harass, threaten, impersonate, or intimidate others;
- (b) to post or transmit, or cause to be posted or transmitted, any content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive, profane, or otherwise violates any law or right of any third party;
- (c) for any illegal or unauthorized purpose. If you are accessing the Blum Software or Site from outside the United States, you agree to comply with all local laws regarding online conduct and use of the Blum Software or Site;
- (d) to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain any password or other confidential information, or private information from any user of the Blum Software or Site;
- (e) to create or submit unwanted email (“Spam”) to any other person or any URL;
- (f) to submit content linking or otherwise directing others to affiliate programs, multi-level marketing schemes, or off-topic content;
- (g) to use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission;
- (h) to take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- (i) to interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;
- (j) to bypass any measures, we may use to prevent or restrict access to the Blum Software or the Site or any part of thereof;
- (k) to advertise to, or solicit, any user to buy or sell any products or services or to use any information obtained from the Blum Software or Site in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent;
- (l) Engage in any action which Blum Telehealth determines is detrimental to the use and enjoyment of the Blum Software or Site;
You agree to abide by all HIPAA guidelines, rules and regulations, including but not limited to, those regarding the handling of Protected Health Information (“PHI”).
YOU AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE BENEFIT OF ANY LAW, LOCAL, STATE OR FEDERAL, LIMITING THE APPLICATION OF THE PROVISIONS OF THIS AGREEMENT RELATING TO INDEMNIFICATION OR RELEASE. SPECIFICALLY, FOR CALIFORNIA RESIDENTS YOU AGREE TO WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
13. WARRANTY DISCLAIMERS AN LIMITATION OF LIABILITY
Blum Telehealth MAKES NO GUARANTEE OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE RELIABILITY, ACCURACY, TIMELINESS OR COMPLETENESS OF ANY INFORMATION PROVIDED IN CONNECTION WITH THE Blum SOFTWARE OR SITE AND ASSUMES NO RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS THEREIN. USER ACCESSES THIS SITE AT HIS OR HER OWN RISK. THE Blum SOFTWARE AND SITE ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE SPECIFICALLY DISCLAIMED. NEITHER Blum Telehealth NOR ITS AFFILIATES, EMPLOYEES, AGENTS OR THIRD PARTY CONTENT PROVIDERS SHALL BE LIABLE FOR ANY LOSS RESULTING FROM USE OF THE Blum SOFTWARE OR SITE OR UNAVAILABILITY OF INFORMATION OR CONTENT ON THIS SITE, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOSS OR DAMAGE TO DATA, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, COMPENSATORY OR INCIDENTAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER IS APPLICABLE TO ANY DAMAGE OR INJURY RESULTING FROM NEGLIGENCE OR OMISSION OF Blum Telehealth, COMPUTER VIRUSES OR OTHER SIMILAR ITEM, TELECOMMUNICATIONS ERRORS, OR UNAUTHORIZED ACCESS TO OR USE OF USER INFORMATION THROUGH THEFT OR ANY OTHER MEANS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE TERMS, IN NO EVENT SHALL Blum Telehealth OR ITS SUPPLIERS BE LIABLE FOR ANY (A) LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING) UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL THEORY (i) WITH RESPECT TO THE Blum SOFTWARE, SITE, YOUR USE OR INABILITY TO USE THE Blum SOFTWARE OR SITE, THE SERVICES OR ANY CONTENT, (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITES OR IN CONNECTION WITH THE SERVICES; OR (iv) ANY OTHER MATTER RELATING TO THE SITES OR SERVICES.OR (B) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Blum Telehealth SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU, BUT YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND Blum Telehealth HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
14. INTENDED AUDIENCE
Unless otherwise specified, the Blum Software and Site are presented solely for the purpose of being used or promoting products available in the United States. Blum Telehealth makes no representation that the Blum Software or Site is appropriate or available for use in other locations. Those who choose to user or access the Blum Software or Site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
Blum Telehealth does not intend the Blum Software or Site to be used by individuals under the age of 18 without the supervision of a parent or guardian 18 years of age or older. Blum Telehealth relies upon parents or guardians 18 years of age or older to determine if the Blum Software or Site are appropriate for the viewing, access, or purchase by such individuals under the age of 18. If an individual under the age of 18 uses the Blum Software or Site, such individual may only use the Blum Software or Site under the supervision of a parent or guardian 18 years of age or older.
15. Linking and Framing
Blum Telehealth does not object to links on third-party sites to the homepage of the Site in an appropriate context. However, “framing” or “mirroring” the Site or any of their content is prohibited without the prior written consent of Blum Telehealth.
The Site may provide links to other sites or resources available on the Internet. Because Blum Telehealth has no control over such sites and resources, you acknowledge and agree that Blum Telehealth is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Blum Telehealth shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
16. Trademarks and trade names
Blum Telehealth®, Blum Telehealth graphics, logos, designs, page headers, button icons, scripts, and other service names are the trademarks and trade names of Blum Telehealth. Blum Telehealth’s trademarks and trade names may not be used, including as part of trademarks or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.
17. Electronic Communications
We use reasonable security measures and take reasonable system, process and administrative precautions to protect the security and integrity of email and other electronic communications that you may send to us. Despite all these precautions, no method of transmission over the Internet is entirely secure and we cannot guarantee the confidentiality or security of the electronic communications or its contents. You transmit such information at your own risk and you should decide very carefully which information you want to send us via any electronic communication.
When you send e-mail to us, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Users of the Site are prohibited from violating or attempting to violate the security of the Site. Blum Telehealth will investigate occurrences of possible violations and will cooperate with all applicable law enforcement authorities in prosecuting violators.
19. DISPUTE RESOLUTION
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the County of Pulaski, State of Arkansas before one arbitrator(s). The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
In any arbitration arising out of or related to this Agreement, the arbitrator(s) are not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator(s) may not award any incidental, indirect or consequential damages, including damages for lost profits. In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
If the arbitrator(s) determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.