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 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.