Terms of Service
These terms of service govern your use of and access to the NotesFirst cloud-based service for note taking, managing tasks and sharing data (the “Service”). The Service may be accessible through the NotesFirst mobile software application, or any other application software that enables access to the Service (“Licensed Application”) or through the NotesFirst website at: http://www.notesfirst.com (the “NotesFirst Website”). Unless otherwise indicated herein, the term “Service” as used herein includes the Licensed Application and the NotesFirst Website.
These terms are intended to form a binding contract between NotesFirst, Inc., (“NotesFirst”) and you as the user of the Service, including the organization or entity on behalf of which you are acting, and all health care providers or other individuals (or their agents) that use the Service on your behalf (collectively, “User”).
1. USE OF LICENSED APPLICATION AND THE SERVICE.
(a) Subject to the terms and conditions of this Agreement, NotesFirst grants to User, the limited, nonexclusive, nontransferable, revocable right to use the Licensed Application, in object code form only, to access and use the Service, along with any related documentation or information delivered to User for User’s personal or internal business purposes, subject to the terms and conditions of this Agreement. User’s access to the Service is limited to the number of authorized users (“Authorized Users”) and other access and Service level restrictions established at the time User’s user account was established. For purposes of this Agreement, the term “Licensed Application” includes any future versions of the Licensed Application or the related documentation that NotesFirst may, in its sole discretion, provide to User under this Agreement.
(b) All right, title and interest in and to the Licensed Application in any medium and all other components of the Service, and any and all enhancements, improvements, or innovations to the Service or Licensed Application, regardless of whether created or conceived by User or its employees or agents, belong exclusively to NotesFirst. Neither User nor any of its Authorized Users who access the Service acquire any proprietary or ownership interest in the Licensed Application, including any intellectual property rights relating thereto. Except for the limited use rights provided in this Agreement, no license or right is granted to User or Authorized Users by NotesFirst by implication, estoppel or otherwise.
(c) In addition, NotesFirst shall have exclusive ownership of all right, title, and interest in and to the entire contents of the NotesFirst Website and to any content, information or data included as part of the Service (other than User Data, as defined below) including, but not limited to, any works of authorship, creative works, graphics, images, textures, photos, logos, sounds, music, video, audio, software, code, applications, animations, gestures, text, objects, primitives, scripts, and interactive features, and the design, selection and arrangement thereof (the “Service Content”).
(d) NotesFirst will host the Service through a third party service provider. NotesFirst reserves the right to make changes and updates to the functionality and/or documentation of the Service and the Licensed Application from time to time.
2. USE RESTRICTIONS AND USER CONDUCT POLICIES.
(a) User shall not, and shall not authorize or enable any third party to, reverse engineer, decompile, or disassemble the Licensed Application or any other component of the Service or otherwise attempt to discover any source code of the Licensed Application or such Service components. Any use of the Licensed Application that is not included within the rights granted under Section 1 of this Agreement is expressly prohibited. User shall not use any component of the Service, including the Licensed Application or Service Content in order to build any commercially available product or service that competes, directly or indirectly, with the Service or copy any features, functions, or interfaces included within or accessible through the Service, including the Service Content.
(b) User shall not rent, lease, loan, resell, transfer, sublicense, or distribute the Licensed Application or any other component of the Service or documentation to any third party or authorize any third party to do so. User may not modify the Licensed Application or any portion thereof.
(c) User must use commercially reasonable efforts to prevent unauthorized access to the Service. User is responsible for all activities that occur under User’s user accounts. User is responsible for maintaining the security and confidentiality of all User usernames, passwords and other account access information. User agrees to notify NotesFirst immediately of any unauthorized use of any Service username or password or account access information or any other known or suspected breach of security.
(d) User agrees to comply with any Service use guidelines, rules of conduct or Service use policies that NotesFirst may post on the NotesFirst Website from time to time.
3. USER DATA.
(a) All data, information, reports or material provided or submitted by User or any Authorized User in the course of using or accessing the Service hereunder (“User Data”) will remain the sole property of User or such users to the full extent provided by law.
(b) User will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all User Data. NotesFirst will not use the User Data for any purpose other than to provide the Service to User and for anonymous statistical reporting purposes. NotesFirst may aggregate anonymous statistical data regarding use and functioning of the Service or any of its components by its various users, including User and its Authorized Users. Such aggregated statistical data will be the sole property of NotesFirst.
(c) User agrees to maintain all reasonable safeguards to protect any protected health information (“PHI”) obtained while using the Service or input using the Service pursuant to and in accordance with all applicable provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). User expressly represents and warrants to NotesFirst that User has obtained the proper consents, authorizations, and releases from individuals to the fullest extent required by applicable law prior to inputting or otherwise submitting any PHI through the Service. User is solely responsible for any unauthorized access to PHI as a result of unauthorized access to User’s account due to a breach of User’s account access information. User agrees to assume all liability regarding the safeguarding of any PHI obtained or used in conjunction with this Agreement. User will promptly notify NotesFirst of any order or demand for compulsory disclosure of PHI included within the User Data by any regulatory agency or other governmental authority if the disclosure requires access to or use of the Service. User agrees to fully cooperate fully with us in connection with any such demand or order.
(d) Subject to the terms and conditions of this Agreement, User grants to NotesFirst a non-exclusive license to use, copy, store, transmit and display User Data to the extent reasonably necessary to provide and maintain the Service, provided NotesFirst will only have access to unreadable, encrypted data. NotesFirst stores User Data in encrypted form and will at all times use commercially reasonable security measures to protect User Data against unauthorized disclosure or use. To the extent that any User Data is subject to and protected by HIPAA regulations, NotesFirst will use commercially reasonable efforts to ensure that such User Data will be stored in compliance with applicable HIPAA Security Rules. NotesFirst will notify User promptly upon discovery of any unauthorized access to any PHI of which it is aware that occurs as a result of a breach of NotesFirst security measures and, in this event, will cooperate reasonably with User and provide User with any information required to comply with any applicable data security breach notifications laws. NotesFirst may grant access to all User Data if required in connection with any audit or investigation by any governmental authority or regulatory agency, including the Department of Health and Human Services.
(e) User shall ensure that all User Data and systems used in connection with the Licensed Application and Service are backed up as often as necessary to ensure the integrity of the User Data, and User assumes all risk of loss of such data and systems due to any failure of the Licensed Application or the Service. User is solely responsible for exporting any User Data in the event of any termination or suspension of User’s account.
4. SUBSCRIPTION FEES.
The subscription fees applicable to use of the Service within the corresponding usage limitations applicable to each level of Service will be specified in NotesFirst’s then-current pricing schedule (the “Pricing Schedule”). NotesFirst may grant “trial access” to the Service upon initiation of a user account. In this event, applicable subscription fees will be due upon expiration of the trial access period unless User elects to terminate the user account prior to such date. User agrees to pay the applicable fees applicable to usage above and beyond each authorized subscription level. All prices are subject to change and User is responsible for reviewing the Pricing Schedule from time to time. Subscription fees may be paid by credit card online at the NotesFirst Website or by any other method approved by NotesFirst. Subscription fees are non-refundable, unless expressly provided otherwise in this Agreement. If for any reason NotesFirst is unable to charge a payment credit card with the full amount of the fees, or if NotesFirst is charged back for any fee previously charged to a payment credit card, User agrees that NotesFirst may pursue all available remedies to enforce the payment obligation, including without limitation, suspension or termination of the User account or access to the Service.
5. TERM AND TERMINATION OF AGREEMENT.
This Agreement remains in effect for the subscription term specified by User at the time the User establishes the User account on the Service (the “Subscription Term”). The Subscription Term will automatically renew for the same time period unless you terminate your User account prior to the expiration of the then-current Subscription Term. You may cancel your User account upon written notice to NotesFirst; provided that you will not be entitled to a refund of any subscription fees paid prior to the expiration of the then-current Subscription Term. NotesFirst may suspend or terminate User’s user account and access to the Service for violation of this Agreement, if User fails to pay applicable subscription fees when due, or if NotesFirst determines in its sole discretion that such action is necessary or advisable to comply with legal requirements or protect the rights or interests of NotesFirst or its other users and third party suppliers. User agrees that that NotesFirst will not be liable for any termination of User’s account or access to the Service. Termination of User’s account includes termination of access to the Services, and deletion of User’s login data, user ID, password, and all related account access information. There are no refunds for any subscription fees paid by User. USER IS SOLELY RESPONSIBLE FOR TERMINATING ITS USER ACCOUNT AND THIS AGREEMENT AND NOTESFIRST IS NOT RESPONSIBLE FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES USER INCURS AS A RESULT OF ANY FAILURE TO PROPERLY TERMINATE ITS USER ACCOUNT.
6. Submission of Ideas and Feedback.
7. NO MEDICAL ADVICE.
Neither NotesFirst nor any aspect of the Service or the NotesFirst Website is intended to provide medical advice. The Service Content (including any features, tools, information and materials available through the Service, directly or indirectly) are for informational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for the professional judgment of any healthcare provider. User assumes the full risk and responsibility for the use of information obtained from or through the Service. User is solely responsible for the professional services User provides.
8. NO WARRANTY.
User expressly understands and agrees that NotesFirst makes no warranties whatsoever as to the operational performance of the Licensed Application or the Service or to the compatibility between the Licensed Application and any future versions of the Licensed Application or other third party software products. NotesFirst is providing the Licensed Application and the Service to User “AS IS” without warranty of any kind. NOTESFIRST EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR PAST DEALINGS BETWEEN THE PARTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NOTESFIRST MAKES NO WARRANTY THAT THE LICENSED APPLICATION OR ANY OTHER SERVICE WILL FUNCTION WITH USER’S SYSTEMS OR THAT THE LICENSED APPLICATION, THE SERVICE OR ACCESS THERETO WILL BE ERROR FREE, COMPLETE, ACCURATE, UNINTERRUPTED OR THAT THE LICENSED APPLICATION OR THE SERVICE WILL MEET USER’S NEEDS OR OTHER REQUIREMENTS. NOTESFIRST DISCLAIMS ANY LIABILITY FOR LOSS OF DATA OR DAMAGE TO USER’S COMPUTER SYSTEMS THAT MAY RESULT FROM USE OF THE LICENSED APPLICATION, OR ANY LICENSED APPLICATION, DATA OR SERVICE CONTENT DOWNLOADED OR OTHERWISE ACCESSED THROUGH THE SERVICE.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTESFIRST SHALL HAVE NO LIABILITY FOR ANY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR TORT DAMAGES, LOST PROFITS, OR LOST DATA) IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE SERVCIE, (B) UNAUTHORIZED ACCESS TO USER DATA OR USER’S ACCOUNT, (C) THIRD PARTY SERVICES OR PRODUCTS ACCESSIBLE THROUGH THE SERVICE OR THE NOTESFIRST WEBSITE, (D) VIRUSES OR OTHER DAMAGING LICENSED APPLICATION INTRODUCED INTO USER’S COMPUTER SYSTEMS IN CONNECTION WITH THE DOWNLOADING, USE OF OR ACCESS TO THE LICENSED APPLICATION OR THE SERVICE, OR (E) ANY OTHER MATTER ARISING FROM THIS AGREEMENT OR USER’S USE OF THE SERVICE, EVEN IF NOTESFIRST HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
User will defend, indemnify, and hold NotesFirst (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) arising out of or in connection with a claim, suit, action, or proceeding (a “Claim”) alleging or resulting from (a) the infringement or other violation of the rights of any third party by the User Data or other data or information supplied by User or any Authorized User, or that such User Data or information has caused harm to a third party, (b) unauthorized access to User’s account through a breach of User’s account access information, (c) User’s or any Authorized User’s violation of applicable law or regulations in connection with the use of the Service by User, or (d) a breach of any of the terms and conditions of this Agreement by User or any Authorized User. NotesFirst will provide User with prompt written notice of any Claim and will cooperate with User in the defense of such Claim.
11. GENERAL PROVISIONS.
The parties agree to the following provisions:
(a) User may not assign its rights or delegate its duties or obligations under this Agreement, whether by operation of law or otherwise, without NotesFirst’s prior written consent.
(b) If a court of competent jurisdiction holds any provision of this Agreement to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
(c) The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
(d) This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes any and all prior agreements and understandings, oral or written, and all other communications between the parties relating to its subject.
(e) This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., excluding its conflict of law rules. User agrees to exclusive jurisdiction in any state or federal court located in San Diego, California for any and all claims or proceedings brought by User relating to this Agreement. Notwithstanding the foregoing, NotesFirst may commence and prosecute any legal or equitable action relating to the user of the Service or to enforce its rights under this Agreement in any other court of competent jurisdiction (state, federal or foreign); provided, however, that User consents to the jurisdiction of any court located in San Diego, California in connection with such legal or equitable action. User acknowledges that a violation of this Agreement may cause irreparable harm to NotesFirst for which monetary damages would be inadequate, and agrees that, in addition to any other remedies provided by law, NotesFirst shall be entitled to seek injunctive relief against any such violation without having to post bond.
(f) Except for payment obligations, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the reasonable control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
(g) No third party provider has any obligation to furnish maintenance and support service with respect to the Licensed Application or Service.
(h) User agrees to address any claims regarding the Licensed Application or Service directly with NotesFirst and not with any other third party, including but not limited to, Apple Inc. (“Apple”). To the extent used in this section, “claims” would include, but not be limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(i) In the event of any third party claim that the Licensed Application and/or Service or User’s possession and use of the Licensed Application and/or Service infringes that third party’s intellectual property rights, NotesFirst, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(j) User may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application and/or Service may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application and/or Service, User represents and warrants that User is not located in any such country or is named on any such list. User also agrees not to use the Licensed Application and/or Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
(k) User agrees that Apple, and Apple’s subsidiaries, are third party beneficiaries of this agreement, and that, upon the User’s acceptance of these terms and conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against the User as a third party beneficiary thereof.
(l) Any questions, complains or claims with respect to the Licensed Application or Service should be directed to: NotesFirst, Inc., 3200 E. Guasti Road, Suite 100, Ontario, CA 91761 – [858-707-5980 – firstname.lastname@example.org].