Effective Date: September 23, 2022
- Authorized Use of the Services.
1.1. Scope of Use. Subject to the terms of the form of agreement used by you to purchase your applicable Services (“Order Form”) and the terms of the Agreement, we grant you a non-exclusive, personal, non-transferable (except as set forth below), non-sublicensable (except to the extent listed on the Order Form), limited and revocable right to access, use such Services in accordance with the Agreement.
- Restrictions on Use of the Services.
2.1 Accessing the Services. You agree to access the Services through an ICON approved application, including any authorized third-party distribution platforms (“Application”), and You specifically agree not to use any other third-party applications not approved by us to access the Services. By using an Application to enable your use of the Service, you are explicitly confirming your acceptance to the Agreement and acknowledging the applicability of the Agreement to your use of the Service through the Application. There may be additional terms provided at the time of download or installation of the Application, which will also be deemed accepted by you upon your use of the Application to use the Service.
You agree not to take any other action that imposes an unreasonable or disproportionately large load on the Services, including, but not limited to, any robot, spider or other automatic device, manual process or application or data mining or extraction tool to access, monitor, copy or use the Services.
You agree not to access or attempt to access any password-protected portions of the Services without an authorized password or through any means other than by submitting your authorized password on the appropriate web page or web tools. You are responsible for protecting the Services you access. You agree to vigilantly safeguard your username and password as well as the confidential and proprietary information and Intellectual Property contained within the Services against unauthorized access, misuse, improper disclosure, and/or any other use prohibited by the Agreement. You agree to notify us immediately if you are aware of unauthorized use of your account or any security breach concerning the Services.
2.2 Manipulating the Services. Except as expressly provided herein or elsewhere within the Services, you may not (i) reproduce, copy, duplicate, print, display, republish, sell, license, disseminate, or redeliver the Services or any portion thereof or use “framing technology,” with the Services; (ii) otherwise distribute, or commercially exploit in any way the Services or any portion thereof or any information or content on the Services; (iii) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Services; (iv) combine the Services or any part thereof with, or incorporate the Services in any other programs; (v) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Services or any part thereof; (vi) lease, sell, sublicense, distribute or otherwise make available the Services or any features or functionality of the Services to any third-party; (vii) use the Services for purposes of competitive analysis of the Services, the development of a competing service or product or any other purpose that is to our commercial disadvantage, without our prior written permission; or (viii) when using the VoiceFriend module, send an excessive amount of messages during a short period of time.
You agree that you (viii) will install the latest version of the application or other means for accessing and use the Services; (ix) will comply with all applicable law in use of the Services, including, without limitation: the HIPPA (as defined below) and the Telephone Consumer Protection Act (“TCPA”). This includes you: (a) securing or providing consent to contact each phone number to which you use the Services to contact individuals; and (b) properly administering an individual’s request to opt-out of receiving such further messages; and (iv) will keep its any registration information, billing information, passwords and technical data accurate collected, or provided, by you, complete, secure and current during the term of the Agreement.
2.3 Unauthorized Content. You agree not to upload on or transmit to or via the Services any information or other content which: (i) infringes or otherwise violates any copyright, patent, trademark, trade secret or other proprietary right; (ii) is defamatory, libelous, expresses hate, or is unlawfully threatening; (iii) is pornographic, obscene or exploitative of a minor; (iv) contains or embodies a virus, worm, Trojan Horse or other contaminating or destructive feature; or (v) otherwise violates any applicable treaty, law or regulation.
2.4 Unauthorized Actions. You agree you will not interfere, in any way, with others’ use of, or access to, the Services and will not attempt to gain unauthorized access to the Protected Health Information, account or computer system of any other Services user. You further agree not to take any other action in connection with your use of the Services which violates any treaty, law or regulation and to fully comply with all applicable treaties, laws and regulations in your use of the Services. We assume no liability, and shall not be held responsible for, any action you take in connection with your use of the Services. In addition, we reserve the right to investigate and take legal action against any illegal and/or unauthorized use of the Services, including, but not limited to, termination as set forth in Section 10.2 and/or 12..
- Our Content. All our content within the Services, including photos, design, text, graphics, logos, button icons, images, software, audio clips, digital products, product samples and data compilations; any improvements or modifications to such content; any derivative works thereof; and the collection, arrangement and assembly of all our content on the Services; are our property or the property of our licensors and are protected by United States and international copyright and other intellectual property laws. We shall have and retain all right, title, and interest in and to the Services, any additions, modifications or enhancements to it and all intellectual property rights associated with any of the foregoing, including, without limitation, rights to patents, copyrights, trademarks, trade secrets, or know-how (“Intellectual Property”). You acknowledge that we are the exclusive owner of the Services and that the Services are our Intellectual Property.
ICON, Caremerge, VoiceFriend, the Services, and other marks displayed on our Services are our proprietary service marks or trademarks or those of our licensors. Our trademarks may not be used in connection with any product or service that is not ours, except as set forth in Section 6, in any manner that is likely to cause confusion among consumers, or to disparage or discredit us. All other trademarks not owned by us that appear on this Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. You may not use, copy, modify or display any of the trademarks, service marks, names or logos appearing on the Services without the express written permission of the trademark owner.
Nothing in the Agreement shall be deemed to grant to you or any other user any license or right in or to any copyright, trademark, trade secret or other proprietary right of our or our licensors.
- Your Content.
4.1 User Feedback. We appreciate any comments or feedback as to how we can improve our product. All comments or feedback submitted to us by you through or in association with the Services (collectively, “User Feedback“) shall be considered non-confidential and our property. By submitting such User Feedback to us, you agree that you assign to us, without charge, all worldwide rights, title and interest, including copyrights and other intellectual property rights, in and to the User Feedback. We shall be free to use such User Feedback on an unrestricted basis and without any compensation or royalties to you.
4.2 Protected Health Information. Notwithstanding anything to the contrary herein, we agree to not use or disclose any Protected Health Information (as defined in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (“HIPAA“), as amended by subtitle D of Title XIII of division A of the American Recovery and Reinvestment Act of 2009, Public Law 111-5 (the “HITECH Act“), and the applicable regulations promulgated under HIPAA and the HITECH Act (collectively, the “HIPAA Regulations“)) that has been submitted to us through or in association with the Services other than as permitted or required by applicable law, including, but not limited to, HIPAA, the HITECH Act and the HIPAA Regulations (collectively, the “Healthcare Laws“).
4.3 User Content. Except as provided in the following paragraph or where otherwise expressly provided by us, all other information, which is not User Feedback or Protected Health Information, submitted to us through or in association with the Services (collectively, “User Content“) shall be considered confidential (except as set forth below). By accessing the Services, you grant to us: (a) a worldwide, transferable, sub-licensable, royalty-free, right and license to host, store, use, copy, display, reproduce, adapt, edit, publish, modify and distribute User Content solely in performance of the Services; and (b) a worldwide, transferable, sub-licensable, royalty-free, right and license to create derivative works of the User Content. Our license to the User Content shall be non-exclusive, except that our license shall be exclusive with respect to derivative works of the User Content. Such derivative works shall be non-confidential. Our license to the User Content is subject to your rights under applicable law (for example laws regarding Protected Health Information set forth above) and is for the limited purpose of operating, developing, providing, and improving the Service and researching and developing new ones.
4.4 Aggregate Data. We may compile statistical and other information related to the performance, operation and use of the Services, including the Protected Health Information, in aggregated, anonymized, de-identified form for research and development services (“Benchmarking”). We retain all Intellectual Property and ownership in the Benchmarking, and as a result may exploit the Benchmarking commercially. We may make the Benchmarking publicly available; however, Benchmarking will not incorporate your Protected Health Information in a form that could serve to identify you or any individual and the Benchmarking does not constitute Protected Health Information under the Healthcare Laws.
4.5 Content Ownership. Lastly, you represent and warrant that you own, have the right to access, or otherwise control all of the rights to the any User Feedback, User Content or Protected Health Information, as applicable (collectively, the “Content“), that you upload to, or access through, the Services; that the Content is accurate; and that use of the Content you supply does not violate this policy applicable law (including any of the Healthcare Laws) and will not cause injury to any person or entity. We have the right, but not the obligation to monitor, to edit or remove Content. We take no responsibility and assumes no liability for any Content posted by you or any third party.
- We Do Not Endorse Comments of Users. We do not endorse, support, sanction, encourage, verify, or necessarily agree with the comments, opinions, or statements of third party users displayed on or transmitted via the Services (“Third Party Content“). Any Third-Party Content placed on the Services are solely the views and responsibility of those who post the statements.
- Additional Services and Products.
6.1 Third–Party Services and Products. The Service may: (a) contain links to third-party websites, applications, advertisers, services, special offers or other events or activities (collectively “Third-Party Services”); or (b) third-party products, devices, or other equipment to assist in the provision of the Services or Third-Party Services (“Third Party Products”); that are not owned or controlled by us (individually and collectively (“Third Party Items”). We make no representation or warranty regarding the Third Party Items. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY THIRD-PARTY ITEMS, NOR DOES IT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CONTENT (OR THE ACCURACY OF SUCH CONTENT) ON ANY THIRD-PARTY ITEMS, AND WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER IN RELATION TO ANY OF THE FOREGOING.
- No Medical Advice Provided. The content on the Services is intended to be general information in regard to the subject matter covered. We do not directly or indirectly practice medicine, render medical advice, or dispense medical services via the Services, and nothing contained in this Services is intended to be instruction for medical diagnosis or treatment. No aspect of the Services is intended to provide, or should be construed as providing, any dietary or nutritional advice or professional medical advice, diagnosis or treatment of any kind. You should not disregard medical advice or delay seeking medical advice as a result of any content on the Services, or otherwise consider any content on the Services to be a substitute for professional medical advice. Please consult qualified healthcare providers regarding any health or dietary concerns or conditions.
If you are a medical care provider, you acknowledge and agree that (i) any medical care decisions made by you using the patient specific content on the Services (including any Protected Health Information for such patient, collectively, the “Patient Information“) is your responsibility, (ii) The Services are a tool to assist you in reviewing such Patient Information that has been entered by various care providers of the subject patient on the Services, (iii) such Patient Information accessed by you on the Services should not be used by you as the ONLY information in making necessary medical care decisions for such subject patient and (iv) you should use your training and experience in the medical field to collect all necessary information in making the appropriate medical care decision for such subject patient.
- No Legal/Financial Advice Provided. No aspect of the Services is intended to provide, or should be construed as providing, any legal or financial advice of any kind. You should not disregard legal advice or financial advice as a result of any content on the Services, or otherwise consider any content on the Services to be a substitute for legal advice. Please consult qualified legal representatives regarding any legal or financial concerns or issues.
- Term and Termination
10.2 Termination. If either You or We breach a material provision of the Agreement and fails to remedy such breach within sixty (60) days after notice in writing from the other party hereto to remedy the breach, the non-breaching party may immediately terminate the Agreement thereafter. You will only be responsible for payment of Services (to the extent applicable to You) up to the date of termination and in accordance with the Agreement.
10.3 Effect of Termination. Upon termination of the Agreement for any reason, you will cease all use of the Services, and will, upon request, within a reasonable amount of time, destroy or return to us all copies of our documentation and/or our confidential information in your possession. Except as otherwise provided in the Agreement, upon termination or expiration of the Agreement, for any reason, payments for the Services (to the extent applicable) provided through the effective date of termination shall become due and payable.
Upon request by you or your authorized representative, made within thirty (30) days after the effective date of termination or expiration of a Services subscription, we will make available to you for download a file of your data in our standard format. We shall do so for a fee, which shall include factors, including but not limited to, the size of the data to be downloaded. After such thirty (30) day period, we shall have no obligation to maintain or provide any of your data and, unless legally prohibited, may delete all of your data in our possession or control.
10.4 Free Trials. If you are provided access to the Services for a free trial, we will provide them in accordance with our free trial terms.
- Modification or Discontinuance of the Services by Us. At any time and for any or no reason, we may modify or discontinue the Services; provided that we will not discontinue the Services without giving you at least forty-five (45) days prior written notice. We shall in no way be held liable for any consequence which results from our decision to modify or discontinue providing the Services.
- Denial of Access/Termination. You acknowledge and agree that we may suspend or terminate your individual or collective access to and use of the Services at any time, with or without cause, at absolute discretion and without notice, including for any breach of the Agreement, including without limitation, the sending of excessive messages during a short period of time. The relevant version of the Agreement shall continue to apply to all prior use of the Services.
- Warranty/Disclaimer of Warranties and Limitation of Liability.
13.1 Warranty. We warrant that the Services will: (i) perform in all material respects as described in accordance with the “Icon Product Features” found at Product Features and (ii) be performed in a professional manner in accordance with the ICON Product Features found at Product Features. If the Services provided to you were not performed as warranted, you must promptly provide written notice that describes the deficiency in the Services. Your sole and exclusive remedy for breach of the warranty will be, at our election: (x) correction of the Services in accordance with the aforementioned warranty; or (y) termination of the Services.
13.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES, AND ANY INFORMATION, CONTENT, PRODUCTS, SERVICES AND MATERIALS CONTAINED IN, ACCESSED VIA, OR DESCRIBED ON THE SERVICES, IS AT YOUR OWN RISK, AND THAT ALL SUCH INFORMATION, CONTENT, PRODUCTS, SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, ICON MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND USE OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES ON OR ACCESSED VIA THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON- INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, ICON DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SERVICES IS ACCURATE, COMPLETE OR CURRENT, AND IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM YOUR RELIANCE ON ANY ASPECT OF THE SERVICES. PLEASE BE AWARE THAT INTERNET DATA TRANSMISSION IS NOT ALWAYS SECURE AND WE CANNOT WARRANT THAT INFORMATION YOU TRANSMIT UTILIZING THE SERVICES IS SECURE. BECAUSE SECURITY IS IMPORTANT TO BOTH ICON AND YOU, WE WILL ALWAYS MAKE REASONABLE EFFORTS TO ENSURE THE SECURITY OF OUR SYSTEMS BUT ICON MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.
13.3 Limitation of Liability. IN NO EVENT SHALL WE OR OUR AFFILIATES, OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF ICON OR ITS AFFILIATES (THE “ICON PARTIES“) BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE OR IMPROPER USE OF THE SERVICES OR ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS OR SERVICES AVAILABLE THEREON (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO HAVE INTERNET CONNECTION TO ACCESS THE SERVICES VIA THE INTERNET AND THAT ICON WILL NOT BE LIABLE IF YOU ARE UNABLE TO ACCESS THE SERVICES DUE TO ANY POWER OR INTERNET DATA CONNECTION FAILURE.
CERTAIN STATE LAWS MAY NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, AND THUS SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS ABOVE MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify and hold the ICON Parties harmless from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees, disbursements and court costs) arising from or in connection with (i) use of the Services or any content, information, materials, products or services contained, displayed, accessed improperly, or available therein by you, or any other person (including, without limitation, your staff or other individuals with whom you have provided access) accessing the Services under any user ID or other access method assigned to you; (ii) your violation of the Agreement, (iii) any Content you provide to us; (iv) your violation of any rights of any third party; or (v) your violation of applicable law, including without limitation, HIPPA or TCPA. For the avoidance of doubt, the agreement by an end-user to the User Policy does not, in any way, limit your obligations under this Section 14.
- Insurance. We will maintain, at no cost to you, insurance coverage (including cyber liability coverage) with limits commercially reasonable for the provision of Services.
- Fees and Payment
16.1 Payment. You will pay us the Service fees and other items (“Fees”) in accordance with the applicable Order Form(s). Fees for the Services shall be as set forth in an Order Form and do not include taxes or any third-party provider fees, unless set forth in the Order Form. Any discounts described in the Order Form are for the initial term of the Order only unless otherwise stated in the Order Form. Fees are stated and must be paid in United States Dollars. You must pay any base, minimum, or fixed Fees associated stated in your Order Form even if you do not use the Services.
16.2 Method of Payment. Unless you have made other arrangements with us, you must authorize and maintain a current valid means for us to collect the Fees via payment card, or ACH at all times during the Term. We may charge the fees on or after the following times: (i) for fixed monthly recurring fees, the first day of each billing cycle, (ii) if applicable, for usage fees, and other variable fees, the last day of each billing cycle, or more often if the usage fees are unusually high for the Customer’s account type, (iii) for one-time fees (such as set up fees), the day you submit an Order that includes the Fee, and (iv) for hourly fees, at the time stated in the Order, or if no time is stated, on completion of the hourly services described in the Order.
16.3 Scope of Usage. If applicable, Usage-based Fees are established by counting the units associated with the ordered Services in the Order. If, during the term of an Order, your usage exceeds the quantity of units in the Order, the Fees will increase based on the applicable price per Unit. Unless otherwise agreed between the parties, the additional Fees will commence on the date you first exceeded its quantity of units set forth in the Order and be prorated for the remainder of the applicable term.
16.4 Taxes. All Fees are exclusive of taxes, and Customer shall pay or reimburse us for all taxes arising out of the Services. If you are required to withhold or deduct any taxes from the payment of any Fees, you will increase the amount payable to us by the amount of such taxes, so that we receive the full amount of all Fees. If you have the legal obligation to pay or collect taxes for which you are responsible, the appropriate amount shall be invoiced to and paid by the you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. our failure to initially invoice you for any applicable taxes does not relieve you from responsibility for such taxes under this Agreement.
16.5 Late Payments. We may suspend or terminate your Service or the Agreement if your payment is overdue, including, without limitation, if our charge to your payment card or account is rejected. We may charge interest on overdue amounts at the lesser of 2.0% per month or the highest non-usurious amount permitted by applicable law. We shall be entitled to recover its costs and reasonable attorney fees in any action of collection pursuant to this Agreement.
16.6 General. Fees are non-refundable. If the Order is terminated prior to the end of the Term then, unless the termination was by us for convenience, or by you for our breach, then you must pay the balance of any Fees.
17.1 Assignment. You may not assign or otherwise transfer the Agreement or any rights or obligations hereunder without our consent. To the extent applicable to you, our consent may be conditioned, in our sole discretion, upon: (a) the assignee agreeing to the updated terms and conditions; (b) a credit check; (c) payment of all outstanding invoices at the time of assignment; (d) guarantee of all past obligations; and (e) any other items we deem necessary for the assignment. Our failure to act on any breach of any provision hereof shall not be construed as a waiver of the enforcement of any provision unless we agree to such waiver in writing.
17.3 No Waiver. No waiver of any term in the Agreement shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these terms shall not constitute a waiver of such right or provision.
17.4 Section Headings. The section headings appearing in the Agreement have been inserted for the purpose of convenience and ready reference. They do not purport to, and shall not be deemed to, define, limit or extend the scope or intent of the clauses to which they pertain.
17.5 Survival of Certain Provisions. All provisions indicating an ongoing obligation, which include but are not limited to Sections 6 Additional Terms, 13.2 Disclaimers of Warranty, 13.3 Limitation of Liability; 14. Indemnity; 15. Fees and Payment; and 17. General Terms and any other provision that by its terms survives the termination of your use of, or access to, the Services, shall survive any termination or expiration of the Agreement, but shall not imply or create any continued right to use the Service after the termination of the Agreement.
17.6 Legal Fees. We shall be entitled to recover its costs and reasonable attorney fees in any action pursuant to this Agreement.
17.8 Contact. If you have any questions relating to the Agreement, the Services or us, please contact: email@example.com
17.9 Notice and Procedure for Making Claims of Intellectual Property Infringement.
We have adopted the following policy towards copyright infringement in accordance with the Digital Millennium Copyright Act (the “DMCA”). If you believe any Content or our content infringes upon your intellectual property rights, please submit a notification alleging such infringement (“DMCA Takedown Notice”) including the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
- Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Any DMCA Takedown Notices should be sent to firstname.lastname@example.org, by phone to 1(888) 996 6993 or via mail to the following address: Copyright Compliance Department c/o ICON Legal, 177 Huntington Ave Ste 1703 PMB 20577, Boston, Massachusetts 02115-3153
We will terminate the accounts of repeat infringers.