Terms of Service
TERMS AND CONDITIONS OF the SERVICE AGREEMENT
The Agreement was last updated on 02-13-2017.
IMPORTANT PLEASE READ CAREFULLY: BY UTILIZING THE SERVICE YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS HEREUNDER.
- Thank you for signing up with DoctorHero (“DoctorHero”) at doctorhero.com Doctor Hero is provided to you by ClickReach LLC.
- DoctorHero is an online marketing platform and a brand that focuses to help Doctors achieve their marketing and business goals with the implementation of software applications that helps Doctors attract new patients by:-
- increasing the visibility in various search engines to increase the acquisition of new patients by the Doctors;
- curate social media content for the Doctor;
- installing lead tracking tools on the Doctor’s website which will demonstrate before and after patient leads;
- synchronizing the Doctor’s blog with DoctorHero which enables the automatic post of original articles to the Doctor’s website which will be written by talented authors ;
- monitoring popular review sites on a daily basis; and
- the integration with Google Analytics to allow the Doctors view and measure the advertising ROI and other social networking sites / applications.
(Collectively referred to as (“the Application”))
- This software as a service agreement by subscription (the “Agreement“) governs your use of the application (as defined herein below) and any related services provided by DoctorHero.
- You are referred to as “Customer” in this Agreement.
- If you use the application, or if you click “I agree” or take any other affirmative action indicating your acceptance of this Agreement, then you have agreed to these terms. If you are an agent or employee of the intended subscriber or user, you individually represent and warrant to DoctorHero that you are authorized to bind that party to this Agreement.
- If you do not agree to this Agreement, then you are not authorized to use the application.
DEFINITION AND INTERPRETATION
- The following words used herein have the following definitions and meanings :-
- ‘Customer Data’ means any of the Customer’s information, documents, or electronic files that are provided to DoctorHero hereunder (i.e. Social Media and Blogs).
- ‘Error’ means any reproducible material failure of the Application to function.
- ‘Application’ means the software service for which the Customer has paid, including any Updates relating thereto that may be provided hereunder or thereunder.
- Use Rights
- During the term and subject to the terms of this Agreement, DoctorHero hereby grants to the Customer and/or anyone who is associated to the Customer in its business capacity, including authorised staff, employees, authorised personnel, agents and/or contractors (“the Business Capacity”) (collectively referred to as the (“Customer”)) a nonexclusive, non-transferable, non-sub licensable right to permit the Customer to operate, view and/or to use the application (“the Use Rights”).
- The Use Rights in Clause 2.1 is limited to use by the The Use Rights are non-transferable, except in the event of a voluntary transfer of substantially all assets by the Customer to a transferee which executes DoctorHero’s form of agreement agreeing to be bound by all of the terms and conditions of this Agreement. All rights in and to the Application not expressly granted herein are reserved to DoctorHero.
- License and Use Restrictions
- The Customer shall not, directly, indirectly, alone, or with another party :-
- copy, disassemble, reverse engineer, or decompile the Application;
- modify, create derivative works based upon, or translate the Application;
- license, sell, rent, lease, transfer, grant any rights in or otherwise commercially exploit the Application in any form to any other party, nor shall the Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.
- You acknowledge and agree that DoctorHero shall own all right, title and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the Application and any suggestions, enhancement requests, feedback, recommendations or other information provided by the Customer and/or any of the Customer’s Users relating to the Application.
- Customer Data
- The Customer owns all right, title and interest in the Customer Data. The Customer hereby grants to DoctorHero, a non-exclusive, non-transferable, non-sub licensable right and license to use, copy, transmit, modify and display the Customer Data solely for purposes of the Customer’s use of the application.
- DoctorHero shall not use the Customer Data except to improve the Application and as necessary to perform its obligations hereunder.
- No Sensitive Data; Customer Responsibilities
- The Customer acknowledges that the Application is not intended for use with protected health information, credit card numbers, financial account numbers, or other similarly sensitive personal information, and that the Customer assumes all risk arising from use of any such sensitive information with the Application, including the risk of any inadvertent disclosure or unauthorized access thereto.
- The Customer is responsible for ensuring that the Customer and the Customer’s Users’ use of the Application is in compliance with all applicable laws and governmental regulations and the Customer acknowledges that the Customer assumes all risk arising from any such use that is not compliant with applicable laws and regulations.
- The Customer is solely responsible for maintaining the security of all users, names and passwords granted to it, for the security of its information applications used to access the Application, and for its Users’ compliance with the terms of this Agreement.
- The Customer will act as though any electronic communications it receives under the Customer’s user names have been sent by the Customer. The Customer will immediately notify DoctorHero if it becomes aware of any loss or theft or unauthorized use of any of the Customer’s passwords or user names.
- DoctorHero has the right at any time to terminate or suspend access to any user or to the Customer if DoctorHero believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the Application or DoctorHero’s network.
- Subject to the terms of this agreement, DoctorHero shall use commercially reasonable efforts to make the Application available to the Customer.
- DoctorHero shall deliver Updates to the Application that apply to the Customer’s current version of the Application at no additional charge.
- DoctorHero shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during DoctorHero’s normal business hours.
- The Customer shall provide such access, information, and support as DoctorHero may reasonably require in the process of resolving any Error. This paragraph is the Customer’s sole and exclusive remedy for Errors.
- DoctorHero is not obligated to correct any Errors or provide any other support to the extent such Errors or need for support was created in whole or in part by:-
- the acts, omissions, negligence or wilful misconduct of the Customer, including any unauthorized modifications of the Application or its operating environment;
- any failure or defect of the Customer’s or a third party’s equipment, software, facilities, third party applications, or internet connectivity (or other causes outside of DoctorHero’s control);
- The Customer’s use of the Application other than in accordance with the Application’s documentation; or
- Financial Terms
- In consideration of the products, services and use rights provided by DoctorHero hereunder, the Customer shall pay to DoctorHero the fees in the amount set forth. All dollar amounts refer to U.S. dollars.
- DoctorHero shall invoice the Customer on a monthly basis and in advance for all recurring charges, which invoices will also include all nonrecurring charges and expenses incurred since the previous invoice.
- If the Customer is in default of any payment of any portion of an invoice for whatever reason, DoctorHero may, in addition to any other remedies it may have, including termination, suspend access to the Application and/or provision of all services to the Customer.
- For the avoidance of doubt, if the Customer is in default of any payments and/or if the Customer prematurely and/or otherwise terminates this Agreement, such termination and/or default shall take effect immediately but without prejudice to the rights of DoctorHero to invoice the Customer for the remaining calendar month by recurring payments or otherwise and DoctorHero’s rights to seek compensation, without limitations, for any consequential loss and/or damages as a result of the said default and/or termination.
- The Customers selecting monthly pricing will receive notice of changes in pricing at least 30 days before the month in which the change in pricing will take effect.
- Term and Termination
- The term of this Agreement commences on the Effective Date hereof.
- This agreement will continue until a party notifies the other party at least 30 days in advance of its intention to terminate.
- Either party can terminate this Agreement for cause upon written notice to the other party :-
- if a party fails to pay the other party any defaulted amounts owed to the other party hereunder within 10 days of written notice by the other party specifying the amounts owed;
- immediately upon any breach of any confidentiality obligations owed to such party by the other party;
- if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 30 days of written notice by the non-breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 30 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or
- upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
- Upon termination of this Agreement :-
- provided that the Customer has paid all amounts owed to DoctorHero hereunder, DoctorHero shall, upon written request received within 30 days of termination, provide any Customer who purchased access rights to the Application with access to the Application for a period of 24 hours for the limited purpose of exporting the Customer Data;
- DoctorHero shall immediately terminate access to the Application by the Customer and as a result of such termination, DoctorHero shall not be liable and/or responsible (as the case may be) for any consequential effects as a result of the termination, including but not limited to :-
- the changes and/or degradation of the Customer’s pre-existing and existing online presence;
- the changes, effect, and/or degradation of the Customer
- the changes, effect and/or degradation of the direct traffic and leads of the Customer’s website.
- The Customer shall immediately pay DoctorHero any amounts payable or accrued but not yet payable to DoctorHero, including any deferred payments or payments originally to be made over time; and
- “Confidential Information” means any and all tangible and intangible information (whether written or otherwise recorded or oral) of a party that:
- derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy; or
- the disclosing party designates as confidential or, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation:
- non-public information relating to a party’s technology, the customers, business plans, promotional and marketing activities, finances and other business affairs;
- third party information that the Customer or DoctorHero is obligated to keep confidential;
- the material terms and conditions of this Agreement; and
- any non-public information relating to any activities conducted hereunder.
- Notwithstanding the above, the term “Confidential Information” does not include any information that is either: readily discernible from publicly available products or literature; or approved for disclosure by prior written permission of an executive officer of the disclosing party.
- Each party shall only use Confidential Information furnished to it hereunder in furtherance of the activities contemplated by this Agreement, and, except as authorized in this Agreement, it shall not disclose the Confidential Information to any other persons without the disclosing party’s express written authorization.
- A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party:-
- gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement),
- discloses only such information as is required by the governmental entity or otherwise required by law, and
- and uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
- The parties hereto covenant and agree that Clause 11 to 15 will survive the expiration, termination, or cancellation of this Agreement, except for Confidential Information constituting a trade secret, with respect to which this Section will survive the expiration, termination, or cancellation of this Agreement for so long as such Confidential Information remains a trade secret.
- The Customer shall defend, indemnify and hold harmless DoctorHero from and against all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third party claim, suit or proceeding that arises from the Customer and/or the Customer’s Users’ use of the Application.
DISCLAIMER OF WARRANTIES
- DoctorHero makes no, and hereby disclaims any, representations or warranties of any kind, express or implied, with respect to the application, the services provided or the availability, functionality, performance or results of use of the application.
- DoctorHero disclaims any warranty that the application, the services provided by DoctorHero, or the operation of the application are or will be accurate, error free or uninterrupted.
- DoctorHero makes no, and hereby disclaims any, implied warranties, including without limitation, any implied warranty of non-infringement, merchantability, of fitness for any particular purpose or arising by usage of trade, course of dealing or course of performance.
DISCLAIMER OF CONSEQUENTIAL DAMAGES
- DoctorHero has no liability with respect to the application, services, or its other obligations under this agreement or otherwise for consequential, exemplary, special, incidental, or punitive damages (including without limitation loss of profits and the cost of cover) even if DoctorHero has been advised of the possibility of such damages.
DISCLAIMER ON THE USE OF ALGORITHM
- The Application, Website and/or DoctorHero’s use of any algorithms are provided “AS IS” without any warranty of any kind. We make no warranties, express or implied that the use of the same are free or error, or are consistent with any particular standard of merchantability, or that they will meet your requirements for any particular requirement/expectation.
LIMITATION OF REMEDIES AND LIABILITY
- In the event that DoctorHero is liable, DoctorHero’s total aggregate liability to the Customer for any reason and upon any cause of action including without limitation, breach of contract, negligence, strict liability, misrepresentations, and other torts, is limited only to the fees paid to DoctorHero by the Customer in respect of the use of the Application during the (1) one month immediately preceding the events giving rise to the liability;
- Neither Party will be liable for any delay or failure to perform its obligations under the Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
- Nothing in the Agreement prevents DoctorHero from disclosing the Customer information and data to the extent required by law, subpoenas, or court orders, but DoctorHero will use commercially reasonable efforts to notify the Customer where permitted to do so.
- The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign the Agreement without the advance written consent of the other party.
- The Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral communications, proposals and representations with respect to the DoctorHero or any other subject matter covered by this Agreement.
GOVERNING LAW, JURISDICTION AND VENUE
- This Agreement is governed by the laws of the State of Michigan and the United States, without regard to choice or conflict of law rules thereof.
Effective as of 02/13/2017