�WESTSIDE BEHAVIORAL CARE, INC.
ONLINE
SCHEDULER TERMS OF USE
These Westside
Behavioral Care, Inc.(�Company�) Online Scheduler Terms of
Use ("TOU") govern all uses of Company�s web-based software
referral source and patient self-schedulers that are linked to www.westsidebehavioral.com, as
well as any related documentation (�Scheduler�).� Use of the Scheduler is subject to your
agreement and acceptance of this TOU.� If
you agree to the terms set forth herein, please indicate your acceptance by checking the appropriate
box or clicking the �Accept� or
similar button presented depending on your point of access to the
Scheduler.� If you do not agree to the
terms of this TOU, do not check the box or select the �Decline� or similar button presented, in which case you are not
authorized to use the Scheduler and should immediately exit the system.
1.���� Authorized
Users.� The Scheduler is made
available to Company providers, affiliates and other users in accordance with
their applicable written agreements with Company, if any, and this TOU is
incorporated into, made part of, supplements and is otherwise governed by such
agreements.� The Scheduler is also made
available to health care insurers, providers and consumers wishing to schedule
appointments with Company affiliates and providers, subject to agreement to this
TOU.� The foregoing individuals and
entities are authorized to use the Scheduler solely in accordance with this TOU
and their applicable agreement, if any (�Users�).� All other uses and users are expressly
prohibited, and User agrees to indemnify, defend and hold harmless Company and
its subsidiaries, affiliates, officers, agents, employees, partners and
licensors from any claim or demand, including legal costs and reasonable
attorneys' fees, or arising out of or related to your use of or connection to
the Scheduler, or your violation of this TOU.
2.���� Confidentiality
and Ownership.� The Scheduler is
confidential and is protected under copyright and other applicable intellectual
property laws.� User agrees that aspects
of the Scheduler may constitute trade secrets of Company and therefore agrees
not to disclose any portion of the Scheduler to any third party, and to use its
best efforts to prevent any unauthorized use or disclosure of the
Scheduler.�� User acknowledges and agrees
that in addition to Scheduler access, he/she may have access to, and become
familiar with, Company�s valuable and unique trade secrets and information of a
business or technical nature (including without limitation other affiliates,
the Scheduler, other computer software, know-how, and other information that is
not generally known to the public and which gives Company a marketplace
advantage) (collectively, �Confidential Information�). User
agrees not to copy, disclose to any third party, publish or otherwise use any
Company Confidential Information except for the sole and exclusive purpose set
forth below.� This confidentiality
obligation shall survive any termination or expiration of this Agreement.
3.���� License
to Use. Users are given a non-exclusive, non-transferable, limited license
to access and use the Scheduler and other Confidential Information made
available by Company for User�s internal purposes in accordance with Scheduler
instructions as made available on the Internet, and only for the limited
purpose of viewing and modifying patient scheduling data through the web
interface in accordance with this TOU.�
Nothing in this TOU provides User any other right, license, ownership,
intellectual property rights or other interest in Company�s Scheduler or other
Confidential Information except as set forth in the previous sentence, and User
shall not access any source or binary code, or attempt to modify, translate,
disassemble, decompile, reverse engineer or otherwise use the Scheduler
programs.� All other uses are expressly
prohibited including, without limitation, any renting, leasing, selling,
sublicensing, distribution, bundling, packaging, transfer, creation of
derivative works and any commercialization of the Scheduler.� Company shall retain all intellectual
property rights, ownership and other right, title and interest in its Scheduler
and Confidential Information, and User agrees not to delete, obscure or
otherwise alter any proprietary rights notices distributed with the Scheduler
or its documentation.�
4.���� Scheduler
Warranty.� Company will take
reasonable efforts to make the Scheduler available on the Internet on a 24/7
basis subject to reasonable maintenance, updates and downtime related to any
technical problems that may arise.� User acknowledges
that the Internet is an insecure environment over which Company has no control,
and that therefore Company shall have no liability related to any hacking
incidents, interruption in services, loss of e-mail contact, or other
circumstances which may be encountered in a business which utilizes the
internet, and User shall remain solely responsible for its own computer systems
and Internet connectivity.� EXCEPT AS
SPECIFIED IN THIS SECTION, THE SCHEDULER IS PROVIDED �AS-IS� AND ALL EXPRESS OR
IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED TO THE MAXIMUM
EXTENT PERMITTED BY LAW.� Users must
promptly notify Company of any technical problems encountered with the
Scheduler, and User�s exclusive remedy and Company sole liability with respect
to such problems and its warranty obligation is to take reasonable efforts to
remedy correctable failures.
5.���� LIMITATION
OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL COMPANY
OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER
CAUSED REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE
USE OF OR INABILITY TO USE SCHEDULER, EVEN IF COMPANY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. In no event will Company's liability to User,
whether in contract, tort (including negligence), or otherwise, exceed the
amount paid by User for access to the Scheduler. �The foregoing limitations will apply even if
the above stated warranty fails of its essential purpose.
6.� Dispute Resolution &
Governing Law.� The parties hereby
agree to submit any disputes regarding this Agreement exclusively to binding
arbitration by the Judicial Arbiter Group of Denver, Colorado.� This Section shall not operate to limit
either party�s right to enforce, to the extent necessary, a Judicial Arbiter
Group judgment in a court of law or Company�s right to seek appropriate
injunctive relief. USER UNDERSTANDS THAT THIS AGREEMENT TO ARBITRATE ALL
ARBITRABLE DISPUTES MEANS THAT USER IS AGREEING TO WAIVE TO THE MAXIMUM EXTENT
PERMITTED BY LAW ANY RIGHT THE SALES REP MAY HAVE TO ASK FOR A JURY IN ANY
DISPUTE WITH COMPANY.� In the event
Company prevails in any dispute hereunder, it shall be entitled to
reimbursement of all costs and expenses, including without limitation attorneys
fees, incurred in resolving such dispute.�
All disputes will be governed by the laws of Colorado except that
any choice of law provisions shall not apply.�
With respect to claims not subject to exclusive arbitration above, the
parties hereby exclusively and irrevocably submit to, and waive any objection
against, the personal jurisdiction and venue of the United States District
Court for the District of Colorado, and the state courts of the State of Colorado located in the
County of Denver, Colorado.
7.� �Force Majeure.� A party is not liable under any this TOU for
any non-performance that is caused by events or conditions beyond that party's
reasonable control, if the party makes reasonable efforts to perform.�
8.�
Severability.� If any provision of this TOU is held invalid,
in whole or in part, by any law or regulation of any government or by any court
or arbitrator, such invalidity will not affect the enforceability of other
provisions or portions thereof.
9. ��Term,
Termination & Survival.� This TOU shall remain in effect for as long
as you use the system.� Your right to use
the Scheduler shall automatically terminate without notice if you violate this
TOU, unless other termination provisions are set forth in your applicable agreement,
if any.� Rights and obligations under
this TOU which by their nature should survive termination or expiration of the
Agreement, including without limitation confidentiality obligations, shall so
survive.
10. Waiver.� Any express waiver or failure to exercise
promptly any right under this TOU will not create a continuing waiver or any
expectation of non-enforcement.
11.�
Modification.� No modification to this TOU will be binding,
unless in writing and manually signed by an authorized representative of each
party, provided that modifications or amendments to this TOU by Company will be
effective upon posting at "https://rsi.avalonwbc.com" or
other TOU link provided by Company at www.westsidebehavioaral.com.
12.�
Injunctive Relief.� The parties agree that injunctive relief is a
necessary remedy in that a breach of certain User obligations hereunder,
including without limitation confidentiality obligations, will result in
irreparable harm to Company.� Therefore,
User agrees that in the event of any such breach, the enforcement of which
requires Company to take legal action, Company will be entitled to recovery of
all attorneys� fees and costs incurred by Company. �In addition to injunctive relief for the
breach of said covenant(s), Company shall be entitled to recover consequential
as well as other damages.�
13. Privacy
Policy.� Use of personally
identifiable information submitted through the Scheduler to Company or its
providers� or affiliates is subject to
and governed by Company�s Privacy Policy located at www.westsidebehavioral.com.
14. Entire
Agreement.� This TOU and the
applicable User agreement referenced above, if any, constitutes the parties'
entire agreement relating to its subject matter.� This TOU cancels and supersedes all prior or
contemporaneous oral or written communications, proposals, conditions,
representations and warranties and prevails over any conflicting or additional
terms contained in any other communication between the parties, if any,
relating to its subject matter during its term.