CUSTOMER PORTAL TERMS OF USE AGREEMENT


Last Revised: September 27, 2016

A.    Ownership and Purpose of the Site:

The eClinicalWorks Customer Portal website and online interface (the "Site") is owned and developed by eClinicalWorks, LLC, a Massachusetts limited liability company ("eClinicalWorks"). The Site's purpose is to provide customers who use eClinicalWorks's electronic health records software or web-based applications with access to product updates, reference materials, technical support, and other associated functionality.

B.    Terms and Conditions of Your Use of the Site:

1.    Your Agreement to these Terms of Use:

a.     This Customer Portal Terms of Use Agreement ("Terms of Use") is a legally binding agreement made by and between eClinicalWorks and you (both for yourself and for the legal entity on whose behalf you are accessing or using the Site) ("You" and as the context provides, "Your" and "Yourself"). These Terms of Use govern Your access and/or use of the Site and You should read them carefully. These Terms of Use shall remain in effect at all times. BY REGISTERING FOR ACCESS TO THIS SITE; ACCESSING OR USING THIS SITE; OR BY CHECKING THE BOX INDICATING YOUR AGREEMENT, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, ACCEPT, AGREE AND CONSENT TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE SITE. ACCESS OR USE OF THIS SITE IS STRICTLY LIMITED TO THOSE WHO HAVE OBTAINED ACCESS CREDENTIALS (E.G., A USERNAME AND PASSWORD) FROM ECLINICALWORKS AND ANY USE OF OR ACCESS TO THE SITE OTHER THAN IN ACCORDANCE WITH THESE TERMS OF USE IS STRICTLY PROHIBITED.

b.    These Terms of Use define the terms and conditions under which eClinicalWorks makes the Site available. From time to time, eClinicalWorks will continue to improve and enhance the functionality of and Content (as defined below) available on the Site. THEREFORE, YOU AGREE THAT ECLINICALWORKS MAY FROM TIME TO TIME MODIFY OR UPDATE THESE TERMS OF USE IN CONSIDERATION OF THESE IMPROVEMENTS, ENHANCEMENTS, OR ADDITIONAL CONTENT. You are responsible for checking these Terms of Use for changes each and every time You login to the Site. However, no modification or update to these Terms of Use will apply to any claim actually pending prior to the date of that modification or update. Your continued use of the Site means that You agree to any new or modified provision of these Terms of Use posted on the Site.

2.    Content and Intellectual Property Information:

a.     eClinicalWorks®, eClinicalWorks P2P®, eClinicalWeb®, eClinicalMessenger®, eClinicalMobile®, eBO®, Electronic Health eXchange®, eEHX® and Improving Healthcare Together® are among the federally registered service marks of or otherwise owned by eClinicalWorks. EClinicalWorks (or its affiliates) also own the common law rights in these marks and in the marks Employer Portal™, Join The Network™, Healow™, Healow@work™, P2POpen™, eClinicalWorks Scribe™, eClinicalCare™, eClinicalTouch™, eClinicalWorks Care Coordination Portal™, eClinicalWorks Care Coordination Medical Record™, eClinicalWorks Community Analytics™, iClinicalPad™, 100 Million Patients™, and the stylized eClinicalWorks™ hexagon mark. These marks may not be used without prior written permission from eClinicalWorks. Any third party trademark(s) that may appear on our Site are the property of their respective owner(s).

b.    The Site's proprietary contents include, without limitation, the animations, applets, audio, data, design, graphics, illustrations, images, information, marks, music, photographs, text, video, and any other files displayed, used, and/or available on the Site, but exclude any Patient Data (as defined below) transmitted through or stored by the Site or eClinicalWorks, (collectively, the "Content") as well as the arrangement, coordination, design, expression, look and feel, selection, and structure of such Content. The Site's Content is owned, controlled, or licensed by or to eClinicalWorks, and is protected by copyright, patent, trademark, and other intellectual property rights and unfair competition laws. eClinicalWorks reserves all rights, title, and interests in the Content and this Site.

c.     These Terms of Use permit You to use the Site for Your internal business use only. Except as expressly provided in these Terms of Use or by eClinicalWorks's express written consent, You agree not to copy, distribute, encode, post, publicly display, publish, republish, reproduce, translate, or upload any part of the Site and or the Site's Content in any manner. If You copy, distribute, encode, post, publicly display, publish, republish, reproduce, translate, upload or otherwise use or provide any other person with access to any part of the Site in breach of the Terms of Use, Your right to use the Site will cease immediately and You must, at our option, promptly return all copies You have made to eClinicalWorks or, if such return is not feasible, destroy all copies of materials. You agree to certify Your compliance with this copies provision in writing within seven (7) days of any request from eClinicalWorks.

d.    Except as expressly provided in these Terms of Use or by eClinicalWorks's express written consent, You agree not to, directly or indirectly use the Site or any proprietary information of eClinicalWorks or its licensors obtained in connection with Your use of the Site in any manner, as a basis for providing any product, service, data or competitive information or otherwise, to a provider which competes with any products or services of eClinicalWorks or its affiliates or otherwise use the Site or any Proprietary Information to compete with eClinicalWorks or its affiliates.

3.    Documentation:

a.     Through Your use of the Site, You may receive copies of or access to certain written technical support or explanatory documents regarding eClinicalWorks's software; eClinicalWorks's services; and/or eClinicalWorks's internal policies and procedures (collectively, "Documentation"). You acknowledge and agree that all such Documentation is and will remain the sole property of eClinicalWorks and that eClinicalWorks shall retain all intellectual property rights in all Documentation, including but not limited to patents, copyrights, or trademarks, whether federally registered, existing at common law, or otherwise.

b.    You further agree that You will treat Documentation as highly confidential information and that You will not share Documentation with any third party, post any Documentation on the internet, or otherwise externally publish any Documentation. You may disclose Documentation to Your employees or independent contractors for the purpose of utilizing eClinicalWorks's software or services, provided that You (i) obtain reasonable assurances prior to making any such disclosure that Documentation will not be used in violation of these Terms of Use and (ii) take reasonable steps to ensure that such disclosure will not result in Documentation becoming generally accessible to the public at large. Notwithstanding any other provision in these Terms of Use to the contrary, You agree that You will never negligently, recklessly, willfully, or knowingly allow any person or entity that competes with eClinicalWorks to access Documentation. You agree to promptly inform eClinicalWorks in writing of any violation of this Documentation provision by You or one of Your employees or agents of which You become aware.

c.     You further agree that if You cease use of either eClinicalWorks's software or the Site, You will promptly return all Documentation and all copies of Documentation to eClinicalWorks or, if such return is not feasible, destroy all Documentation and all copies of Documentation. You agree to certify Your compliance with this Documentation provision in writing within seven (7) days of any request from eClinicalWorks.

d.    Finally, You agree that the Documentation is of a special, unique, and extraordinary character and that disclosure or other use of such information in violation of these Terms of Use will irreparably harm eClinicalWorks. You agree that eClinicalWorks shall be entitled to seek injunctive relief to further prevent use and/or disclosure in addition to other remedies available to it in law or in equity for breach of these Terms of Use, and You hereby agree that no bond in excess of $1,000 USD or its equivalent shall be necessary for obtaining such injunctive relief.

4.    Digital Millennium Copyright Notice and Other Reports of Infringement:

a.     eClinicalWorks respects the intellectual property of others, and we ask You to do the same. If You believe that Your work has been copied in a way that constitutes copyright infringement, please let us know.

b.    Pursuant to 17 U.S.C. 512(c) ("Digital Millennium Copyright Act of 1998"), You may contact eClinicalWorks to report the infringement of any intellectual property right through eClinicalWorks's designated agent:

Nainil Chheda
eClinicalWorks, LLC
2 Technology Drive
Westborough, Massachusetts 01581
United States of America
(866) 888-6929
sales@eclinicalworks.com

5.    Access and Use of Site:

a.     The Site may be used only by organizations, practices, or providers who have an existing contractual relationship with eClinicalWorks. This Site is not for general public or consumer access and such use of the Site by the general public or consumers generally is explicitly forbidden. eClinicalWorks will provide You or Your organization with user credentials and password information for accessing the Site. If Your user credentials and password meet the acceptable security guidelines of the Site, these may be used to access and use the Content and functionality on the Site. If they are not acceptable, You may be prompted to create new login credentials and/or a new password. You are solely responsible for maintaining the strict confidentiality of the user credentials and password You are currently using for accessing the Site. YOU AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES OR LOSSES THAT MAY BE INCURRED OR SUFFERED AS A RESULT OF YOUR FAILURE TO MAINTAIN THE STRICT CONFIDENTIALITY OF YOUR USER CREDENTIALS AND PASSWORD. YOU SHOULD IMMEDIATELY INFORM ECLINICALWORKS IN WRITING OF ANY NEED TO DEACTIVATE YOUR ACCOUNT DUE TO POTENTIAL OR ACTUAL SECURITY CONCERNS. ECLINICALWORKS WILL NOT BE LIABLE FOR ANY HARM RELATED TO THE MISAPPROPRIATION OF YOUR USER CREDENTIALS AND PASSWORD; YOUR WILLING DISCLOSURE OF SUCH ITEMS TO ANOTHER PERSON; OR YOUR AUTHORIZATION TO ALLOW ANOTHER PERSON OR ENTITY TO ACCESS AND USE THE SITE UNDER YOUR LOGIN CREDENTIALS.

b.    eClinicalWorks makes no representations or warranties related to the operability or availability of the Site. eClinicalWorks will use the means it believes are reasonable, in its sole discretion, to provide access to the Site on a basis that it deems appropriate. BY USING THE SITE OR ACCESSING THE SITE'S CONTENT, YOU EXPRESSLY AGREE THAT ECLINICALWORKS SHALL NOT BE LIABLE FOR ANY FAILURE OR DEFICIENCY IN THE PERFORMANCE OF THE SITE FOR ANY REASON.

c.     By using the Site or accessing the Site's Content, You expressly agree and acknowledge that data conversion and transmission is subject to the likelihood of human and machine errors, omissions, delays, and losses-including inadvertent loss of data or damage to media-that may give rise to loss or damage. You further agree that eClinicalWorks shall not be liable for any such errors, omissions, delays, or losses. You understand and agree that use of or connection to the Internet is inherently insecure and that connection to the Internet provides opportunity for unauthorized access by a third party to computer systems, networks, and any and all information stored therein. While eClinicalWorks strives to maintain the security of the Site and the Site's Content, all information transmitted and received through the Internet is subject to unauthorized interception, diversion, corruption, loss, access, and disclosure. eClinicalWorks shall not be responsible for any adverse consequences whatsoever of Your connection to or use of the Internet, and shall not be responsible for any use by You of an Internet connection in violation of any law, rule, or regulation, or any violation of the intellectual property rights of another.

6.    Medical Disclaimers:

a.     By using this Site or accessing any Content, You acknowledge and agree that eClinicalWorks does not and cannot practice medicine. Any Content available on the Site is for informational and educational purposes only and is not a substitute for the professional judgment of a health care professional in diagnosing and treating patients. Neither the Content nor any other service offered by or through the Site is intended to be substituted for medical diagnosis or treatment. eClinicalWorks does not recommend or endorse any specific drugs, tests, physicians, products, procedures, opinions, "off-label" drug uses, or other information that may be mentioned on the Site.

b.    Your reliance upon any information obtained or used by You is solely at Your own risk. eClinicalWorks is not responsible for the accuracy of any information or content provided or sent by You or other users of the Site. You are responsible for verifying the accuracy of any information You send or receive through the Site, including any patient health information, data, or records. If You are experiencing a health emergency, You should immediately call 911 as soon as possible.

7.    Compliance with Laws; Transmission of Data:

a.     With respect to its operation of the Site, and to the extent required by (i) the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA") and any regulations promulgated thereunder, and (ii) the Health Information Technology for Economic and Clinical Health Act, as amended ("HITECH") and any regulations promulgated thereunder (collectively, the "Privacy Laws"), eClinicalWorks will take diligent efforts to comply with the Privacy Laws and maintain the confidentiality of any Protected Health Information (as defined by the Privacy Laws) ("PHI") transmitted or made available through the functionality of the Site as required by the Privacy Laws. eClinicalWorks's compliance with the Privacy Laws may be subject to the terms and conditions of a separate business associate agreement or business associate addendum between You and eClinicalWorks (collectively, a "BAA"). To the extent any provision of these Terms of Use regarding or affecting either You or eClinicalWorks's compliance with the Privacy Laws is in conflict with any BAA, the provisions of that BAA will control. Otherwise, these Terms of Use will control.

b.    NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF USE, YOU AGREE THAT ECLINICALWORKS SHALL NOT HAVE ANY LIABILITY TO YOU FOR ANY FAILURE OF THE SITE TO COMPLY WITH THE PRIVACY LAWS; THAT YOU ARE RESPONSIBLE FOR ENSURING YOUR COMPLIANCE WITH THE PRIVACY LAWS; AND THAT YOU HEREBY IRREVOCABLY WAIVE ANY CAUSE OF ACTION AGAINST ECLINICALWORKS OR ITS AFFILIATES, EMPLOYEES, OFFICERS, MEMBERS, OR CONSTITUENTS BASED IN WHOLE OR IN PART ON ECLINICALWORKS'S FAILURE TO COMPLY WITH THE PRIVACY LAWS.

c.     If at any time You use the Site to upload, access, or transmit PHI, You agree that You shall comply with all State and Federal laws, including but not limited to the Privacy Laws. You represent and warrant that Your access to or use of any PHI is solely for a purpose permitted under the Privacy Laws. You represent and warrant that You will, at all times during the term of these Terms of Use and thereafter, comply with all laws directly or indirectly applicable to You that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of PHI. You are, at all times during Your use of the Site, solely responsible for obtaining and maintaining all legally necessary consents or permissions required or advisable to disclose, process, retrieve, transmit, and view any PHI that You choose to transmit, store, or receive in connection with the Site.

d.    eClinicalWorks acknowledges and agrees that any data that is compiled or passes through the Site that includes or is related to information, including genetic information, in whatever form or medium, that: (i) is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (ii) relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual (collectively, the "Patient Data"), and all right, title, and interest therein, is and shall remain the exclusive property of such patients, respectively. Notwithstanding any other provision of these Terms of Use, to the extent permissible under the Privacy Laws and any other applicable laws and regulations, You hereby grant to eClinicalWorks a perpetual, unlimited, royalty-free, fully paid license to use and access the Patient Data in a de-identified format stripped of identifiers only for data benchmarking, sharing, warehousing, resource utilization, and similar data analysis services; provided, however, that eClinicalWorks shall comply with the Privacy Laws in connection with any such actions and shall protect and maintain the confidentiality of all individually identifiable Patient Data used in such manner.

e.    ECLINICALWORKS CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR YOUR USE OR MISUSE OF PHI OR OTHER INFORMATION TRANSMITTED, MONITORED, STORED, OR RECEIVED WHILE USING THE SITE. ECLINICALWORKS RESERVES THE RIGHT TO AMEND OR DELETE ANY CONTENT ON THE SITE (ALONG WITH THE RIGHT TO REVOKE ANY MEMBERSHIP OR RESTRICT ACCESS TO THE SITE) THAT IN ECLINICALWORKS'S SOLE DISCRETION VIOLATES ANY PROVISIONS OF THIS SECTION OR THESE TERMS OF USE IN GENERAL.

8.    Prohibited Conduct:

a.     You may only use the Site for lawful purposes. In Your access and use of the Site, You agree that You will not: (i) infringe any copyright, patent, right of privacy, right of publicity, trademark, trade secret, or other right of eClinicalWorks or any third party; (ii) abuse, defame, harass, or stalk any individual or other user of the Site; (iii) interfere or attempt to interfere with, or damage or attempt to damage, the Site or the proper functioning of the Site, including, without limitation, through the use of cancel bots, denial of service attacks, flood pings, forged routing or electronic mail address information, harmful code, packet or IP spoofing, phishing, Trojan horses, viruses, or similar methods or technology; (iv) use any deep-link; page-scrape; robot or "bot"; spider; other automatic device, program, algorithm, or methodology; or any similar or equivalent manual process to access, acquire, copy, or monitor any portion of the Site or any Content; in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content; or obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Site; (v) misrepresent Your identity, licensing, qualifications, work experience, criminal history, or the like; provide false information; impersonate another person or entity; misrepresent Your affiliation with a person or entity, including, without limitation, eClinicalWorks; create or use a false identity; or attempt to use another user's account; (vi) attempt to obtain unauthorized access to the Site; (vii) engage, directly or indirectly, in transmission of chain letters, junk mail, spam, or any other type of unsolicited solicitation; (viii) manually or through automated means collect, reverse look-up, trace or seek to trace information about other users or visitors to the Site without their express consent or other information relating to the Site; (ix) use any meta tags or any other hidden text utilizing the eClinicalWorks name, service marks, trademarks, or product or service names; (x) advertise, offer to sell, or sell any goods or services set forth in the Site or otherwise use the Site to solicit other users, except as expressly permitted by eClinicalWorks; (xi) engage in any activity that interferes with any third party's ability to use or enjoy the Site; (xii) probe, scan, or test the vulnerability of the Site or any network connected to the Site, or breach the security or authentication measures on the Site or any network connected to the Site; (xiii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site; eClinicalWorks's systems or networks; or any systems or networks connected to the Site or utilized by eClinicalWorks; or (xiv) assist any third party in engaging in any activity prohibited by these Terms of Use.

9.    Privacy:

a.     eClinicalWorks uses information that we collect from users of the Site to personalize and improve Your visit and experience with the Site and for other purposes set out below. eClinicalWorks gathers the following types of information:

b.    We collect "Personal Information" that is provided by the users of the Site. "Personal Information" includes any individually identifiable information You have provided in connection with Your use of the Site. Personal Information is collected when You establish an account with us, or when You communicate with us about the Site. This may include PHI as defined under the Privacy Laws.

c.     eClinicalWorks (or service providers on our behalf) may collect information from the use of the Site, which then interacts with certain websites, through the use of "Web Beacons" or otherwise. Web Beacons are web page elements which may employ cookie technology that enables eClinicalWorks to record data about visits to or transactions made through the Site. This information is sometimes known as "clickstream data." eClinicalWorks may use this data to analyze trends and statistics to improve Your online experience or our customer service. No Personal Information is collected through the use of Web Beacons relative to the Site. You agree that through the use of cookies, we may also collect and analyze the IP address used to connect Your computer or mobile device to the Internet; computer and connection information such as Your browser type and version; operating system and platform; purchase history; confirmation when You open an email that we send You; and the URLs You visit through the Site. You can generally set Your browser to reject cookies or to notify You when You are sent a cookie.

d.    eClinicalWorks uses the information we collect in an effort to develop and improve Your experience on the Site; to provide services to You; and to communicate with You about information that You request. We may also use this information to help us target specific offers and advertising to You.

e.    We will not rent, sell, or otherwise disclose Your Personal Information to unrelated third parties without Your consent, except as stated in these Terms of Use. eClinicalWorks may provide aggregated or de-identified information to some of our business partners. This information does not identify You individually in any way. In addition, as set forth above, eClinicalWorks may, subject to the limitations set out in the Terms of Use and any BAA, use certain de-identified PHI.

f.     To the extent permitted by law, eClinicalWorks will disclose Your Personal Information to government authorities or third parties pursuant to a legal request, subpoena, or other legal process. eClinicalWorks may also use or disclose Your Personal Information as permitted by law to perform charge verifications, apply or enforce the Site's Terms of Use, or protect eClinicalWorks's rights, interests, or property as well as those of our affiliates, customers, or website users. Following disclosure to any third party, Your Personal Information may be accessible by others to the extent permitted or required by applicable law.

g.    The Site employs Secure Socket Layer ("SSL") encryption technology in all areas of the Site which require You to provide Your Personal Information, as well as in the transmission and uploading of any PHI to and through the Site. The Site utilizes industry-standard firewalls and SSL transport to encrypt any electronic transfer of PHI.

10.  Communications with Users; Links To Third Parties:

a.     The Site may contain links to the websites of eClinicalWorks partners, Your employer, or unrelated third party companies ("Linked Sites"). These links are provided for Your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links.

b.    eClinicalWorks does not own and has no control over the Linked Sites and therefore assumes no responsibility and makes no warranties or representations with respect to the availability of these websites, their content, advertising material, or the products or services available at or through the Linked Sites. eClinicalWorks does not endorse any Linked Site, has not used or accessed and is therefore not bound by the terms of use of any Linked Site, if any, of such Linked Site, and the existence of a Linked Site does not mean that eClinicalWorks has any affiliation, connections, endorsement, or sponsorship of such websites or their owners or operators.

c.     YOU AGREE THAT ECLINICALWORKS SHALL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES THAT MAY RESULT FROM YOUR VISIT TO A LINKED SITE, OR FROM A YOUR USE OF THE CONTENTS, PRODUCTS, OR SERVICES OF THESE WEBSITES OR THEIR OWNERS OR OPERATORS. YOU FURTHER AGREE THAT ECLINICALWORKS SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE CONTENT OR CONDUCT OF, ASSOCIATED WITH, OR RELATED TO ANY LINKED SITE, AND, ACCORDINGLY, YOUR ACCESS AND USE OF ANY LINKED SITE SHALL BE SOLELY AT YOUR OWN RISK.

d.    If You have any questions or concerns regarding any Linked Site, You should review any terms of use and/or privacy policy maintained by that Linked Site or contact the applicable party or their website administrator.

11.  Your Representations, Warranties, and Indemnification of eClinicalWorks:

a.     You represent, warrant, and covenant to eClinicalWorks that: (i) You have the full capacity, power, and authority to enter into and perform Your obligations under these Terms of Use; (ii) Your use of this site is solely for purposes authorized under a preexisting contractual relationship between (x) eClinicalWorks and (y) You or an organization, practice, or provider with which You are affiliated; (iii) Your assent to, and performance of, Your obligations under these Terms of Use do not constitute a breach of or conflict with any other agreement or arrangement by which You are bound, or any applicable laws, regulations, or rules; (iv) You are able to form a legally binding contract and these Terms of Use constitute legal, valid, and binding obligations on You, enforceable in accordance with their terms and conditions; (v) You will not infringe the patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other intellectual property or proprietary right of eClinicalWorks or any third party in Your use of the Site; (vi) You have provided complete, truthful, and accurate information about Yourself for purposes of joining the Site; (vii) You are not using, and will not use, the Site or any information contained therein for any improper, harassing, or unlawful purpose; (viii) You will comply with all applicable laws, rules, and regulations in Your use of the Site, including these Terms of Use and any applicable healthcare laws or regulations; and (ix) You are not accessing the Site for the purpose of obtaining information about the Site or its functionality to sell to any third party or transfer to any third party for the purpose of obtaining a financial or other tangible benefit.

b.    YOU AGREE TO DEFEND, INDEMNIFY AND HOLD ECLINICALWORKS AND ITS OWNERS, EMPLOYEES, REPRESENTATIVES, AGENTS, ATTORNEYS, AFFILIATES, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, SUCCESSORS and ASSIGNS ("INDEMNIFIED PARTIES") HARMLESS FROM ANY AND ALL DAMAGES, LOSSES, LIABILITIES, JUDGMENTS, AWARDS, COSTS, OR EXPENSES (INCLUDING WITHOUT LIMITATION, ATTORNEY'S FEES AND COSTS) INCURRED IN CONNECTION WITH ANY THIRD PARTY CLAIM, DEMAND, OR ACTION ("CLAIM") BROUGHT OR ASSERTED AGAINST ANY OF THE INDEMNIFIED PARTIES: (I) ALLEGING FACTS OR CIRCUMSTANCES THAT WOULD CONSTITUTE A BREACH BY YOU OF ANY PROVISION OF THESE TERMS OF USE; (II) ARISING FROM, RELATED TO, OR CONNECTED WITH YOUR USE OF THIS SITE AND/OR ITS CONTENT; OR (III) ARISING FROM, RELATED TO, OR CONNECTED WITH YOUR NON-COMPLIANCE WITH ANY HEALTHCARE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE PRIVACY LAWS.

12.  DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS:

a.     As used below in this Section 12 of these Terms of Use, in addition to eClinicalWorks, LLC, "eClinicalWorks" refers to that entity's owners, its employees, representatives, agents, attorneys, affiliates, directors, officers, members, managers, volunteers, licensors, and suppliers.

b.    DISCLAIMER OF WARRANTIES: THE SITE, ITS CONTENT AND ANY INFORMATION INCLUDED ON OR PROVIDED THROUGH THE SITE IS PRESENTED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ECLINICALWORKS DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF NEGLIGENCE, NON-INFRINGEMENT, WORKMANLIKE EFFORT OR QUALITY, OR ANY WARRANTIES OF TITLE. WITHOUT LIMITING THE FOREGOING PROVISIONS: (1) YOU ASSUME SOLE RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SITE AND/OR ITS CONTENT; (2) ECLINICALWORKS MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE AND/OR ITS CONTENT OR ITS USE WILL BE ERROR FREE, SECURE, VIRUS FREE, OR FREE FROM INTERRUPTIONS, DEFECTS, OR OTHER FAILURES OR HARMFUL COMPONENTS OR THAT THE SITE AND/OR ITS CONTENT WILL SATISFY YOUR SPECIFIC REQUIREMENTS OR BE COMPATIBLE WITH YOUR EQUIPMENT OR OTHER HARDWARE, SOFTWARE, OR BROWSER CONFIGURATION OR THAT INACCURACIES OR ERRORS WILL BE CORRECTED; (3) ECLINICALWORKS MAKES NO REPRESENTATION OR WARRANTY THAT THE INFORMATION OBTAINED FROM THIRD PARTY SOURCES USED ON OR WITH THE SITE OR RECEIVED IN CONNECTION WITH CONVERTING OR TRANSMITTING ANY DATA RECEIVED IN DIFFERENT FORMATS IS ACCURATE, TIMELY, RELIABLE, OR ERROR FREE, AND ECLINICALWORKS IS NOT RESPONSIBLE IN ANY WAY FOR THE INFORMATION OBTAINED FROM SUCH SOURCES; (4) ECLINICALWORKS MAKES NO REPRESENTATION OR WARRANTY THAT THE INFORMATION PROVIDED BY USERS TO GAIN ACCESS AND PERMISSION TO USE THE SITE OR OTHER INFORMATION POSTED BY USERS IS ACCURATE, TIMELY, RELIABLE, OR ERROR FREE; (5) ECLINICALWORKS MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SUITABILITY OF ANY PERSONS PARTICIPATING IN THE SITE OR REGARDING THE CHARACTER OR INTEGRITY OF SUCH PERSONS; AND (6) ECLINICALWORKS MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

c.     LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES: YOU AGREE THAT UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL ECLINICALWORKS, ITS AFFILIATES, LICENSORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, OR THE THIRD PARTIES MENTIONED ON THE SITE BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES OF ANY CHARACTER WHATSOEVER, ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF, ACCESS TO, OR INABILITY TO USE OR ACCESS THE SITE AND/OR ITS CONTENT UNDER OR IN CONNECTION WITH ANY PROVISION OF THESE TERMS OF USE BASED ON ANY CLAIM FOR FAULT, ANY TORT (INCLUDING ORDINARY NEGLIGENCE BUT EXCLUDING INTENTIONAL ACTS OR GROSS NEGLIGENCE), STRICT LIABILITY, OR BREACH OF WARRANTY BY ECLINICALWORKS, ITS AFFILIATES, LICENSORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, OR ANY THIRD PARTIES MENTIONED ON ITS WEBSITE AND EVEN IF ECLINICALWORKS, ITS AFFILIATES, LICENSORS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, OR THE THIRD PARTIES MENTIONED ON THE SITE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT IF THERE IS ANY CONFLICT BETWEEN THIS LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES PROVISION AND ANY PROVISION OF ANY OTHER AGREEMENT BETWEEN YOU AND ECLINICALWORKS, THE TERMS OF THIS PROVISION SHALL CONTROL. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. YOU AGREE AND ACKNOWLEDGE THAT THE PROVISIONS OF THIS PARAGRAPH SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. INCLUDING BUT NOT LIMITED TO, CLAIMS RELATED TO PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

d.    ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

13.  Violation of These Terms of Use:

a.     You agree that eClinicalWorks may, in its sole discretion and without prior notice, terminate Your access to the Site if eClinicalWorks determines, in its sole discretion, that You have or may have violated these Terms of Use. You agree that eClinicalWorks will not be liable to You or to any third party for termination of Your access to the Site or removal of any communication or posting of information by You, or contents thereof, as a result of any violation of these Terms of Use.

b.    eClinicalWorks may disclose any information it has about You, including Your identity, if it determines that such disclosure is necessary as part of any investigation or complaint regarding Your use of the Site, or to identify, contact, or bring legal action against any person or entity who may be causing injury to or interference with eClinicalWorks's rights or property or any Site user's rights or property. eClinicalWorks reserves the right to disclose any information eClinicalWorks deems necessary to comply with any applicable law, regulation, or governmental rule, and also when it determines that applicable law permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.

c.     You acknowledge and agree that eClinicalWorks may preserve any communication by You with eClinicalWorks through the Site or any service offered on or through the Site and may disclose such communications when required by law or if eClinicalWorks deems, in its sole discretion, that such preservation or disclosure is reasonably necessary to: (1) comply with legal process; (2) enforce these Terms of Use; (3) respond to a claim that any communication, information posted on the Site or any Content violates the rights of others; or (4) protect the rights, property, or personal safety of eClinicalWorks and its employees, users of or visitors to the Site, and/or the public.

d.    If eClinicalWorks takes legal action against You as a result of Your violation of these Terms of Use, eClinicalWorks will be entitled to recover from You, and You agree to pay, all reasonable attorney's fees and costs of such action, in addition to any other relief granted to eClinicalWorks.

14.  Void Where Prohibited:

a.     eClinicalWorks reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service on or associated with the Site to any person or geographic area, whether by reason of the local laws applicable in such geographic area or otherwise. Any offer for any feature, product, or service made on the Site is void where prohibited and eClinicalWorks expressly does not direct any offer for any feature, product, or service made on the Site to any jurisdiction or locality where prohibited.

b.    The owner of the Site is based in the United States. eClinicalWorks makes no claims that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. By using the Site, You are agreeing and certifying that You are not downloading, exporting, or re-exporting the software or technology of the Site (i) into (or to a national or resident of) any country to which the United States has embargoed goods or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nations or the United States Commerce Department's Table of Denial Orders. If You access the Site from outside the United States, You do so on Your own initiative and acknowledge that it is Your ultimate responsibility to comply with any and all government export and other applicable national and local laws.

15.  Modification or Termination of the Site:

a.     eClinicalWorks may, in its sole discretion and without any liability, change, discontinue, make improvements to, modify, or suspend, any aspect or all of the Site, temporarily or permanently, at any time without prior notice.

16.  Jurisdiction and Applicable Law:

a.     These Terms of Use shall be governed, construed and applied in all respects by the laws of the Commonwealth of Massachusetts, without regard to any principles governing choice or conflicts of law. Any dispute arising out of, relating to, or connected with these Terms of Use or Your use of the Site shall be brought before the federal or state courts located in the Commonwealth of Massachusetts. By using the Site, You expressly consent to the personal jurisdiction and venue of such courts and waive any challenge or objections thereto.

17.  Miscellaneous:

a.     If any provision of these Terms of Use are ruled by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provision(s) shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best furthers the intent of these Terms of Use, with all remaining provisions remaining in full force and effect.

b.    These Terms of Use constitute the entire agreement between You and eClinicalWorks with regard to Your access to and use of the Site. No counteroffers to these Terms of Use shall be accepted by eClinicalWorks, and eClinicalWorks rejects all such counteroffers. These Terms of Use supersede all prior and contemporaneous understandings, agreements, representations and warranties, whether written or oral, concerning or related to Your access to and use of the Site, including any previous version(s) of these Terms of Use. These Terms of Use do not modify or supersede any agreement between You and eClinicalWorks that does not substantially concern or relate to Your access to and use of the Site, including the terms of any master agreement or license agreement or BAA.

c.     eClinicalWorks may assign its rights, in whole or in part, in the Site or under these Terms of Use in accordance with its sole discretion. You may not assign Your rights or obligations, in whole or in part, under these Terms of Use without eClinicalWorks' prior written consent, which may be withheld in its sole discretion. Any attempt to assign these Terms of Use without consent will be null and void.

d.    eClinicalWorks's failure or delay to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver of any provision or any right that eClinicalWorks has to enforce these Terms of Use.

e.    Any headings or similar language in these Terms of Use are provided solely for purposes of convenience and are not to be construed as forming part of these Terms of Use.

f.     These Terms of Use do not confer any rights or remedies on any third parties and You agree that there are no intended third-party beneficiaries under these Terms of Use.