PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS APPLY TO YOUR USE OF (A) THIS WEBSITE (THE “WEBSITE”), (B) THE PTLINKED MOBILE APP (THE “MOBILE APP”), AND (C) THE EXERCISES AND OTHER INFORMATION MADE AVAILABLE THROUGH THIS WEBSITE AND THE PTLINKED MOBILE APP (THE “CONTENT”).
USING OR ACCESSING THE WEBSITE, THE MOBILE APP OR THE CONTENT, ESTABLISHES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND YOUR AGREEMENT THAT THESE TERMS AND CONDITIONS ARE THE ENTIRE AGREEMENT BETWEEN YOU AND PTLINKED REGARDING THE WEBSITE, THE MOBILE APP AND THE CONTENT.
PTLINKED MAY CHANGE THESE TERMS AND CONDITIONS AT ANY TIME. YOU AGREE TO THOSE CHANGED TERMS AND CONDITIONS BY CONTINUING TO ACCESS AND USE THE WEBSITE, THE MOBILE APP OR THE CONTENT.
THE WEBSITE, THE MOBILE APP AND THE CONTENT ARE NOT INTENDED FOR USE BY ANYONE UNDER THE AGE OF 13. YOU CANNOT USE THE SITE UNLESS YOU ARE AT LEAST 18 YEARS OLD AND LEGALLY ABLE TO AGREE TO THESE TERMS AND CONDITIONS, OR 13 OR OLDER AND HAVE YOUR PARENT OR GUARDIAN'S CONSENT TO THE AGREEMENTS.
1. PERMITTED USE.
Any Website visitor may (i) use the Website to access and use Content, (ii) use the Website email feature to initiate emails that contain links to the Website and Content, (iii) print copies of Content for their personal use, or (iv) request appointments with physical therapists and other qualified health care providers. Any Mobile App user may use the Mobile App (i) for personal use to access and use exercises and exercise programs included in the Content, and (ii) to store exercises and exercise programs through the storage tools provided.
2. PTLINKED (PATIENT) ACCOUNT HOLDERS.
In addition to permitted uses described in Section 1 above, PTLINKED (patient) account holders will be required to agree to additional User Terms and Conditions when they first access their patient portal. PTLINKED patient account holders are responsible for maintaining the security of their usernames and passwords, and all use of their accounts. PTLINKED may suspend or terminate any account at any time in PTLINKED’S discretion.
3. PTLINKED (PROVIDER OR PROFESSIONAL) ACCOUNT HOLDERS.
In addition to permitted uses described in Section 1 above, PTLINKED PRO account holders will be required to agree to PTLINKED PRO User Terms and Conditions when they first access their provider portal. PTLINKED PRO account holders are responsible for maintaining the security of their usernames and passwords, and all use of their accounts. PTLINKED PRO account holders may (i) use Telehealth and video conferencing, exercise prescription and care delivery tools that they have paid the applicable fees to use, (ii) use and modify Content to provide services to individuals, (ii) establish user accounts for those individuals, and (iii) deliver Content and modified Content to those individuals through the PTLINKED PRO system, or such other means as PTLINKED may make available.
Subscription Fees or Enterprise License Fees paid by PTLINKED PRO account holders, or Companies paying for PTLINKED PRO account holders, are non-refundable. To terminate any PTLINKED PRO account, notice must be provided at least thirty (30) days in advance of the next renewal period. PTLINKED may suspend or terminate PTLINKED PRO accounts at any time for security reasons, breach of the User Terms and Conditions, or overdue payment.
4. PTLINKED (ADMIN) ACCOUNT HOLDERS.
In addition to permitted uses described in Section 1 above, PTLINKED Admin account holders will be required to agree to additional User Terms and Conditions when they first access their Admin portal. PTLINKED Admin account holders are responsible for maintaining the security of their usernames and passwords, and all use of their accounts. PTLINKED may suspend or terminate any Admin account at any time in PTLINKED’S discretion.
5. PTLINKED SERVICE RECIPIENTS.
If you receive Content or modified Content through an account established for you by a service provider, your use of the Website, the Mobile App, and that Content and modified Content is subject to these Terms and Conditions. PTLINKED may terminate your account at any time for security reasons, breach of these Terms and Conditions, or if your service provider does not pay the applicable fees for your account.
6. PROHIBITED USE AND CONDUCT.
You may not use the Website, the Mobile App, or any Content in any manner that (i) is illegal, or may result in civil or criminal liability, (ii) interferes with, infringes or violates the rights of others, (iii) is defamatory or abusive, (iv) may interfere with the use of the Website, the Mobile App, or the Content by others, (v) may disrupt, limit or damage the operation of the Website or the Mobile App, (vi) creates or disseminates bulk email, SPAM, or (vii) otherwise violates the policies established by PTLINKED in its discretion.
Except as expressly provided in Sections 1, 2, 3, 4, and 5 above (as and to the extent those provisions are applicable to you), all copying, downloading, reproduction, distribution, adaptation, modification or communication of, or linking to Content or any portion of the Website or the Mobile App is prohibited. Screen scraping and other methods Robots, spiders and other automatic devices may not be used by anyone to monitor or copy any portion of the Website, the Mobile App, any Account, or the Content.
7. HEALTH AND SAFETY INFORMATION.
Take proper precautions before beginning any exercise program, including seeing your physical therapist, physician or other qualified health care provider. Learn more about the Health and Safety Information below in this Website’s legal section.
9. USER PROVIDED CONTENT.
In the course of your use of the Website or the Mobile App, you might provide or communicate content or information to PTLINKED or to others. One way that happens is when you use the email features of the Website or the Mobile App.
PTLINKED makes and retains copies of that content and information in the course of the operation of the Website and the Mobile App. You grant to PTLINKED a license to use, reproduce, display, perform, and distribute such content and information as necessary for PTLINKED to manage and operate the Website or the Mobile App, for purposes of security, and for the investigation of complaints and possible unlawful activities.
PTLINKED does not monitor all of the content or information posted, transmitted or communicated by others through the Website or the Mobile App. You are responsible for all content and information you post, transmit or communicate. PTLINKED may use filters and other technology in the effort to detect and remove viruses, to limit spam and undesirable communication, and to protect the Website and the Mobile App from disruption or damage, as PTLINKED considers necessary or appropriate in its sole discretion. Action taken by PTLINKED to limit transmission of or access to any communication, information or content is not an assumption by PTLINKED of responsibility for any such communication, information or content.
The Website, the Mobile App, and the Content, and all videos, animations, voiceover, music, artwork, graphics, trademarks, logotypes, data and other material accessible through the Website and the Mobile App are the property of PTLINKED or its suppliers. United States and international trademark, copyright and other intellectual property right laws protect the Website, the Mobile App, the Content and all such data and other material.
11. LINKS AND REFERENCES.
The Website and the Mobile App may contain links to websites operated by others. The Website and the Mobile App may also contain references to products and services offered by others. PTLINKED is not responsible for, and will have no any liability of any kind with respect to those websites, products or services, or the individuals or businesses that operate those websites or offer or provide those products or services. You should direct all of your questions, concerns or complaints about those websites, products or services to the individuals or businesses that operate those websites or offer those products or services.
12. TRANSACTIONAL DATA.
“Transactional Data” means all information that is collected or accessed as a result of your use of the Website or the Mobile App. You grant PTLINKED a perpetual, worldwide, irrevocable, royalty-free license, with the right to grant sublicenses, to (i) use Transactional Data in any manner for our internal business purposes, including research, development and the provision of services to you and others, (ii) distribute and disclose Transactional Data that is de-identified, and (iii) grant third parties the rights to use, distribute and disclose Transactional Data that is de-identified.
13. DISCLAIMER OF WARRANTIES.
ACCESS TO AND USE OF THE WEBSITE, THE MOBILE APP, AND THE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE.” PTLINKED MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, THE MOBILE APP, OR THE CONTENT.
14. LIMITATION OF LIABILITY.
PTLINKED WILL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RELATING TO (A) THE WEBSITE, THE MOBILE APP, OR THE CONTENT, OR (B) THE USE OF THE WEBSITE, THE MOBILE APP, OR THE CONTENT. IN NO EVENT WILL PTLINKED’S LIABILITY OF ANY KIND INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, EVEN IF PTLINKED SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IN NO EVENT WILL PTLINKED’S LIABILITY OF ANY KIND EXCEED $100.
15. WAIVER AND INDEMNIFICATION.
You hereby release and discharge PTLINKED, and PTLINKED’s employees, contractors, officers directors, and suppliers, from all liability of any kind that arises out of or relates to your use of the Website, the Mobile App, and the Content.
You will indemnify and hold harmless PTLINKED, and PTLINKED’S employees, contractors, officers, directors, and suppliers from all cost, liability and expense arising out of your use of the Website, the Mobile App, and the Content.
PTLINKED may take any action to enforce these Terms and Conditions, and to respond to complaints or allegations of misconduct as PTLINKED deems necessary or appropriate. You agree to cooperate with PTLINKED in addressing any violation of the Terms and Conditions, and in responding to complaints or allegations of misconduct, including but not limited to claims of infringement of other violation of the rights of others.
PTLINKED may change the Website, the Mobile App, and the Content in any way and at any time, in PTLINKED’S sole discretion.
18. COPYRIGHT INFRINGEMENT CLAIMS.
Copyright infringement claims with respect to the Website, the Mobile App, and the Content must include:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) 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 at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit PTLINKED to locate the material.
(iv) Information reasonably sufficient to permit PTLINKED to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has 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.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Copyright infringement claims should be sent to:
These Terms and Conditions will be interpreted and construed in accordance with the laws of the State of Minnesota. All controversies and claims arising out of or relating to these Terms and Conditions will be settled by arbitration in Minneapolis, Minnesota administered by the American Arbitration Association under their Commercial Arbitration Rules. The arbitration will be conducted in the English language. Judgment on any award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
If any part of these Terms and Conditions is held illegal, void or ineffective, the remaining portions will remain in full force and effect. No failure by either party to take any action or assert any right under these Terms and Conditions will be deemed to be a waiver of that right in the event of the continuation or repetition of the circumstances giving rise to that right.
20. CONTACT US.
Questions, comments or concerns about these Terms and Conditions should be directed to: email@example.com.
INFORMATION WE COLLECT
PTLINKED collects a number of different kinds of information about you. Some information is collected through your use of our website at www.ptlinked.com (the “Site”), some is collected through your use of our PTLINKED admin portal, provider portal, patient portal, or mobile app, and some is collected through offline communications with you.
A "referrer" is the information passed along by a web browser that references the web URL from which you come to the Site. Referrers are automatically collected by web servers. We use them to identify the websites referring traffic to the Site, and to present appropriate content to Site users. We may use referrer information to identify general trends and traffic patterns. For example, we may use referrer information to identify the information on the Site that is viewed by individuals referred by certain other websites.
IP addresses are used by your computer every time you are connected to the Internet. Your IP address is a number that is used to identify your computer so that data (such as the web pages you request) can be sent to you. They are automatically collected by web servers.
System information we collect might include, among other things, the type of web browser being used. This information is sent automatically by your web browser when you are connected to the Site and we use it only to identify demographic statistics and general trends and traffic patterns.
When you register to establish an account with PTLINKED you provide certain information. We use that information for the sole purpose of maintaining your account and communicating with you about PTLINKED. When you purchase PTLINKED services you provide credit card and other additional information. We use that information for the sole purpose of facilitating your purchase.
The Site contains features that allow you to forward information and personal messages through your email account. When you use that feature you provide your name and email address. We use this information only to assist in the process of delivering your message.
At times we might also collect information that you provide in ways that are not online, such as by mail or by phone. For example, we might collect telephone numbers or other information needed to communicate with our account holders. We use that information to communicate with you.
Future Technologies and Methods
INFORMATION WE SHARE
At times, we must disclose information to our business partners. For example, we might need to disclose certain information to our contractors, so that they may perform services for us. We may disclose personal information to such contractors and business partners without additional notice. We require such contractors and business partners to keep your information confidential.
We may also disclose the information we collect to other parties for other purposes, provided that it is de-identified. We may also be required to disclose certain information in order to comply with applicable law.
Your information may be transferred to another party that succeeds to all or part of our business. For example, if we acquire a new business, we might share your information with that business. A successor to the ownership of all or any part of our business may also access or acquire your information.
UPDATING AND CORRECTING YOUR INFORMATION
If you wish to access, update or correct the information we collect from you, please contact us at firstname.lastname@example.org.
We provide mechanisms to opt out of receiving certain communications from us. We describe those mechanisms in our communications as required by applicable law.
DO NOT TRACK
At this time, we do not respond to Do Not Track signals.
IMPORTANT HEALTH AND SAFETY INFORMATION
SEE YOUR PHYSICAL THERAPIST, PHYSICIAN OR ANOTHER QUALIFIED HEALTH CARE PROVIDER BEFORE STARTING ANY EXERCISE PROGRAM. ONLY A PHYSICAL THERAPIST, PHYSICIAN OR ANOTHER QUALIFIED HEALTH CARE PROVIDER CAN DETERMINE IF AN EXERCISE PROGRAM IS SAFE AND APPROPRIATE FOR YOU.
PTLINKED DOES NOT PROVIDE ANY DIAGNOSTIC, TREATMENT OR OTHER MEDICAL ADVICE. THE EXERCISES AND OTHER INFORMATION PROVIDED ON PTLINKED’S WEBSITE AND MOBILE APP(S) ARE PROVIDED FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY AND ARE NOT A SUBSTITUTE FOR DIAGNOSTIC, TREATMENT OR OTHER MEDICAL ADVICE.
YOU ARE RESPONSIBLE FOR SEEKING APPROPRIATE MEDICAL ADVICE AND EXERCISING AS DIRECTED BY YOUR QUALIFIED HEALTH CARE PROVIDER.
Follow your health care provider’s advice when exercising. Exercise in a well-lit environment that is free from obstacles and that gives you enough space to move freely. Wear appropriate footwear and clothing as your health care provider advises. Drink fluids as your health care provider advises. Stop exercising immediately and consult with your health care provider if you have any questions or concerns about exercising.
STOP EXERCISING IMMEDIATELY IF YOU BECOME NAUSEATED, DIZZY, FAINT, OR LIGHTHEADED, AND/OR IF YOU EXPERIENCE ANY UNUSUAL DISCOMFORT INCLUDING SEVERE PAIN, NUMBNESS, TINGLING, LOSS OF STRENGTH, OR SHORTNESS OF BREATH.
ABOUT PHOTOSENSITIVE SEIZURES
A very small percentage of people may be susceptible to experiencing seizures when they are exposed to certain visual images, including flashing lights and/or patterns on a computer screen, television, mobile device or other display. Even people with no history of seizures or epilepsy may have a condition that can cause photosensitive epileptic seizures to occur. A variety of symptoms, including lightheadedness, altered vision, eye or face twitching, jerking or shaking of arms or legs, disorientation, confusion, or momentary loss of awareness can result. Seizures can also result in loss of consciousness, or convulsions that can lead to additional injury as a result of falling down or striking nearby objects.
STOP EXERCISING IMMEDIATELY IF YOU EXPERIENCE ANY OF THESE SYMPTOMS.
The Health Insurance Portability and Accountability Act (HIPAA) provides standards to protect the confidentiality, integrity and availability of protected health information (PHI), including electronic protected health information (ePHI). HIPAA provides guidance for an acceptable level of protection for ePHI while giving healthcare providers access to information necessary to perform their daily business functions. The PTLINKED PRO Software and Content has been designed such that healthcare providers may use our services for Telehealth video communication, exercise prescription, and care delivery in a manner that is consistent with their HIPAA obligations.
There are two main rules under HIPAA related to ePHI – the Privacy Rule and the Security Rule. The Privacy Rule establishes national standards for the protection of PHI. The Security Rule requires Covered Entities and Business Associates to maintain reasonable and appropriate administrative, technical, and physical safeguards for protecting ePHI. With HIPAA in mind, PTLINKED and its supplier offer encryption that is designed to protect the video streams during transmission to ensure that no unauthorized parties could access a video conference while in session. Further, the PTLINKED PRO Software does not include the ability for the Company User, PTLINKED, or its supplier to record the videoconferencing sessions, but rather facilitates transmission of communications over encrypted channels.
PTLINKED and its supplier employ the following additional safeguards to help Covered Entities meet applicable HIPAA technical standards when delivering Telehealth visits:
Access Controls, Authentication and Security – The following controls are present in the PTLINKED PRO Telehealth Software Platform: 1) All registered Company Users (who should only be authorized employees or contractors) have a unique username and password and must authenticate with a password in order to schedule and join calls. 2) All Telehealth visits will be terminated at the end of the visit by the Company User, who is the Telehealth provider. 3) Access is terminated automatically after 15 minutes of inactivity. 4) Additional features help Telehealth providers restrict access to the call rooms including protecting meetings with PIN codes and configuring meetings so participants are put into a virtual waiting room until the Telehealth provider has joined.
Audit Controls (monitoring systems activity) – Failed authentication attempts to the system are monitored for signs of attempted unauthorized access, and configuration changes are monitored to minimize the risk that unauthorized changes are made to the environment.
Transmission Security (integrity controls and encryption) – Utilizing industry standard and proven technologies, PTLINKED and its supplier employ a variety of security measures at both the application level and the network level. At the application level, PTLINKED and its supplier meet enterprise security standards with the use of TLS, SRTP, H.235 (where interoperability with legacy videoconferencing is supported), and AES 128-bit encryption for signaling and media. At the network level, our supplier's hosting facilities are SOC 2 compliant, with 24/7 protection to meet regularly assessed, configured, and updated to remain effective against intrusion. Leading edge filtering and advanced routing techniques help protect against Distributed Denial of Service (DDoS) attacks.
While compliance with all aspects of HIPAA is ultimately the responsibility of the Covered Entity, PTLINKED partners with our healthcare customers to help them implement our solutions in a manner that will assist Covered Entities in meeting their compliance obligations.
To the extent the Parties are required by HIPAA to have a Business Associate Agreement, the Parties shall execute a Business Associate Agreement, with terms and conditions reasonably acceptable to each Party, and which complies with HIPAA requirements, and thereafter each party shall comply with the terms and conditions of such Business Associate Agreement.
THE FOLLOWING PTLINKED PRO USER TERMS AND CONDITIONS MUST BE INDIVIDUALLY ACCEPTED BY HEALTH CARE PROVIDERS BY CLICKING THE “I AGREE” BUTTON OR A SIMILAR BUTTON OR LINK IN THE SOFTWARE THAT INDICATES THE HEALTH CARE PROVIDER AGREES WITH THE TERMS AND CONDITIONS PRIOR TO USING THE SERVICE.
IMPORTANT: PLEASE READ THESE TERMS AND CONDITIONS (THE “USER TERMS”) BEFORE USING PTLINKED PRO (THE “SERVICE”). BY IN ANY WAY USING THE SERVICE (INCLUDING THROUGH THE INSTALLATION OF ANY RELATED SOFTWARE OR PLUG-INS), YOU UNCONDITIONALLY AGREE (A) THAT THESE USER TERMS ARE ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU, AND (B) TO BE BOUND BY AND TO BECOME A PARTY TO THESE USER TERMS WITH PTLINKED, LLC (“PTLINKED” OR “US”). IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THESE USER TERMS, THE USE OF THE SERVICE IS STRICTLY PROHIBITED. TO THE EXTENT THAT THE TERMS OF THESE USER TERMS ARE CONSIDERED AN OFFER, YOUR ACCEPTANCE THEREOF IS EXPRESSLY LIMITED TO THESE TERMS.
PLEASE NOTE THAT BY AGREEING TO THESE USER TERMS YOU ARE WAIVING CERTAIN RIGHTS SET FORTH IN SECTION 8, BELOW, INCLUDING THE RIGHT TO BRING A CLASS ACTION SUIT AGAINST US.
1. ACCESS AND USE OF THE SERVICE
The Service: The Service allows two or more users to communicate by videoconference, audioconference, text message, content sharing or otherwise from multiple devices using our software (each such communication, a “Call”).
Registration; Account: If you or your organization has subscribed to the Service, you will be required to register and create an account (a “User Account”), either directly as a customer if you subscribed directly or under the master administrative account of your organization, and at such time, you will be issued a user identification and temporary password. However, if you were invited to join the applicable Call as a guest by a registered user, you may use the Service for that Call without creating a User Account. You are solely responsible for maintaining the confidentiality of your User Account and related details, including your user identification and password. You must notify us immediately in the event that you learn or suspect that your user identification, password or any other User Account information has been compromised so that we may promptly take actions to prevent their unauthorized use by other parties, and you hereby expressly authorize us to take any such actions. If your access to the Service is under an organization’s subscription or Enterprise license, you acknowledge and agree that your administrator may have access to your User Account and its content, and may suspend or terminate your User Account (and your access to the Service) and your ability to modify your User Account.
User Software: Your use of the Service may require the use or installation of certain software, plug-ins, extensions, documentation or data (such items, “User Software”). Operation, installation and use of User Software is governed by the terms and conditions of the separate End User License Agreement which can be viewed at https://www.ptlinked.com/legal#eula, to which you must agree prior to any installation or use thereof. You are responsible for the selection and maintenance of any hardware device which is to be used in connection with the Service (“Hardware Devices”), including, without limitation, video-enabled devices, video communication services, modems, hardware, servers, software, operating systems, networking devices and web servers, and for the connection of all such Hardware Devices to the Internet (including bandwidth and the availability of all such connections). You expressly agree that we have no responsibility or liability to anyone with respect to such matters, or with respect to any difficulty or inconvenience that you or any User experiences attempting to utilize any item of hardware or attempting to connect any item of hardware to the Internet, except with respect to warranty or support obligations we may separately have with respect to hardware purchased or licensed from us under the explicit terms relating thereto. PTLINKED, in its sole discretion, reserves the right to add/change/remove additional features or functions, or to provide programming fixes, updates and upgrades, to the User Software. You acknowledge and agree that PTLINKED has no obligation to make available to you any specific or subsequent versions of the User Software.
Mobile Services: The Service includes certain services that may be accessed via a mobile device, including (i) the ability to transmit content to and receive content from the Service via a mobile device, and (ii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, the applicable wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by such carrier, and not all Mobile Services may work with all carriers or devices. You expressly agree that PTLINKED has no responsibility for any such restrictions or fees imposed by any such mobile carriers.
Availability and Integrity of Service: PTLINKED will use commercially reasonable efforts, consistent with prevailing industry standards, to maintain the Service in a manner which minimizes errors and interruptions. From time-to-time the Service will be unavailable due to scheduled maintenance or for unscheduled emergencies maintenance. PTLINKED will use commercially reasonable efforts to provide advance notice to you of any scheduled Service disruption. PTLINKED will not be responsible for failures or delays in the Service due to causes beyond its reasonable control including failures, latency or defects in all circuits, cabling, equipment and other connectivity infrastructure from a point at demarcation starting at the location immediately after the ingress/egress appliance at our data center up to the applicable User’s point-of-presence, or for failure or delay of performance if caused by an act of war, hostility, or sabotage, act of God, any electrical, internet, or other telecommunication outage that is not caused by us, or any government restrictions (including the denial or cancellation of any export or other license, or any law or governmental regulation that would render the provision or use of the Service impermissible in the applicable jurisdiction) (all of the foregoing are hereby deemed to be events of “Force Majeure”). Users are responsible for ensuring their own connectivity to such points-of-presence. PTLINKED cannot and does not warrant or guarantee that third parties will not intercept, interfere with, or access in an unauthorized manner, information or communications sent or received as part of the Service. You expressly acknowledge that the hosting facilities used to host the Service may be anywhere in the world.
2. INTELLECTUAL PROPERTY RIGHTS; RIGHT TO USE
Our Property: The technology and software underlying the Service or distributed in connection therewith, including all User Software (collectively, “Software”), is the property of PTLINKED, its suppliers, our affiliates, and our licensors and is protected by copyright, patent, trademark, trade secret or other intellectual proprietary rights and laws. Any improvements to the Software or the Service including but not limited to, modifications, upgrades, fixes, derivative works and additions thereto, and any new know-how and new technical information developed or discovered by PTLINKED in the course of the provision of the Service, including those based in whole or in part on any feedback, suggestions, recommendations or improvements that you may provide us, are and will be the sole and exclusive property of PTLINKED (and to the extent required in connection with the foregoing, upon any delivery thereof to us you are hereby deemed to grant to us an irrevocable, perpetual, royalty-free right and license to use all such feedback, suggestions, recommendations or improvements for any purpose whatsoever). PTLINKED has the express right to patent or otherwise disseminate any such improvements, new know-how and new technical information. The PTLINKED logo is a registered trademark of PTLINKED, LLC. in the U.S. Patent and Trademark Office and in other jurisdictions. The PTLINKED Software, the Service, the property of our suppliers, and all intellectual property rights therein and to all derivative works thereof, are “Our Property”). Except as explicitly set forth herein, you expressly agrees that nothing in these User Terms or the Service will be deemed as granting, by implication, estoppel, or otherwise, any license or right to use any of Our Property without our prior written permission in each instance. All goodwill generated from the use of PTLINKED Trademarks will inure to our exclusive benefit.
Right to Use: Subject to your compliance with these User Terms, we grant you a personal, revocable, non-transferable, non-assignable, non-exclusive, royalty-free right to use the Service (as well as any related Software) in order to participate in Calls. If you are an invitee to a Call and have not otherwise procured a subscription to the Service (e.g., through your organization or directly as a subscriber), this right applies only to the Call to which you were invited. If you procured access to the Service directly as a subscriber, or were provided access by a third party (e.g., through your organization), this right is expressly subject to the terms of such subscription, and will be deemed to be automatically revoked upon any expiration or termination of such subscription.
Restrictions: Except as expressly permitted herein, you will not: (i) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any of Our Property, (ii) copy, modify or make derivative works based upon Our Property, or (iii) attempt to circumvent, reverse engineer, decompile, disassemble, tamper with, or attempt to learn the source code of any of Our Property. Any use of the Service except as expressly authorized herein is strictly prohibited.
3. RESTRICTIONS AND RESPONSIBILITIES
Restrictions on Use: The Service may not be used in critical safety or other applications where any failure may reasonably be anticipated to result in bodily injury, loss of life, or catastrophic damage to property. The foregoing shall not limit use of the Service for healthcare applications, which shall be subject to following sentence: No representation or warranty is made that the Service can achieve: (i) unaltered transmission of still images, video images or audio; or (ii) continuous, uninterrupted and non-corrupted transmission of such still images, video images or audio, and no governmental agency or department has authorized the medical effectiveness of the Service. We make no representations or warranties, and expressly disclaim any such representation and warranty, that the Service can achieve: (i) unaltered transmission of still images, video images or audio; or (ii) continuous, uninterrupted and non-corrupted transmission of such still images, video images or audio. The Service may not be used by any User in any jurisdiction where such use, or the provision of this Service, is illegal or requires any permission, permit or license of any governmental agency or department. Use of the Service is limited to your internal business purposes, and in no event may the Service be provided to third parties, whether on a service bureau, service provider/reseller or time sharing basis or otherwise.
No Emergency Services: The Service is not intended to support or carry emergency calls to any type of hospital, medical care unit or any other kind of emergency service. You agree that PTLINKED and its suppliers are in no way liable for the use of the Service in connection with any such emergency calls.
Use by Children: PTLINKED does not sell products or services to children. You will not allow children under 18 to use the Services without the involvement and the express prior consent of a parent or guardian.
Prohibited Conduct: You are expressly prohibited from engaging or assisting others in engaging in the conduct listed below in connection with your and their use of the Service:
In addition to any other right or remedy that we may have under these User Terms or in connection with a breach thereof, we may suspend your access to and/or use of the Service if you have or we suspect you may, violate these prohibitions or, for any other reason, without prior notice and without liability to you or any other party whatsoever.
Accessibility: While we cannot guarantee that all the features and functions of the Service will be fully accessible by all people with disabilities, we are committed to making the Service available to all our users, including those with disabilities. You can help. If you notice any content, feature or function of the Service that is not accessible to people with disabilities, please email us at email@example.com, with the words “Disabled Access” in the subject line and provide a description of the specific feature you feel is not accessible or suggestion for improvement. We cannot promise that we will reply to your e-mail or make the changes you suggest, but we can assure you that we take your input seriously and will evaluate it in the context of our overall accessibility design.
Disclaimer: You agree that you are solely responsible for your activities. We do not moderate or otherwise actively monitor the Calls and other activities undertaken by you in connection with your use of the Service. The comments and opinions expressed and content used by users are theirs alone and do not reflect the views of PTLINKED, its management or its employees. We make reasonable efforts to enforce prohibitions on libelous, defamatory, abusive, obscene, indecent, harassing and/or threatening conduct, but some users still may make comments or display content that others will find inappropriate or offensive. You expressly agree that we are not responsible for the foregoing or the actual or alleged affect thereof on any group or individual.
Recording: You will comply with all applicable laws, whether federal, state, local or international, relating to the privacy of communication for all parties to a conversation.
4. USER CONTENT
Responsibility for Communications: You are solely responsible for all information and data, including any verbal, visual, graphical, sound, textual or other content (collectively, “Content”) communicated during Calls or otherwise transmitted, disclosed, published or used in connection with the use of the Service by you (“Transmit”). You are solely responsible to your patients/clients for prescribing exercise programs and rehabilitation plans; directing and supervising patients/clients regarding proper use of the programs and plans; and obtaining informed consent from and advising patients/clients about when to contact their treating healthcare or rehabilitation provider regarding the programs and plans prescribed. You will not Transmit any Content to anyone else by means of the Service, unless by virtue of ownership of the Content or possession of a license to Transmit that Content to others you have an unconditional right to do so. You grant us a fully paid up, transferable, sublicensable, right and license to Transmit, store, modify, reformulate and otherwise use all such Content for any lawful purpose related to the provision, operation, or maintenance of the Service. You acknowledge and agree that PTLINKED may at its sole discretion use and preserve Content as required for the provision, operation, or maintenance of the Service or as required by applicable law, and may disclose any such Content if in its good faith belief such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these User Terms; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of PTLINKED, its employees, contractors, Users, and the public. You understand and acknowledge that the technical processing and transmission of the Service, including your Content, may involve (x) transmissions over various networks; and (y) changes to conform and adapt to technical requirements of connecting networks or devices. Under no circumstances will PTLINKED or its supplier be liable in any way for any Content Transmitted by third parties or at your direction, including, but not limited to, for any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content Transmitted via the Service.
Objectionable Content: You acknowledge that PTLINKED does not pre-screen Content, but that PTLINKED and its designees will have the right (but not the obligation) in their sole discretion to refuse, block or remove any Content that is available via the Service. Without limiting the foregoing, PTLINKED and its designees will have the right to block or remove any Content that violates these User Terms or is deemed by PTLINKED or its designees, in their sole discretion, to be objectionable.
Copyright Complaints: The Service provides a means for users to Transmit Content between Users, and you acknowledge that PTLINKED does not have the ability to monitor or determine that such Content is properly owned or licensed by the user Transmitting such Content. If you believe that any of your materials have been Transmitted as Content in a manner that constitutes the infringement of your copyright in such materials, or that your intellectual property rights have been otherwise violated, you should notify PTLINKED of your infringement claim in accordance with the procedure set forth below.
PTLINKED will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to PTLINKED’s designated agent at firstname.lastname@example.org (Subject line: “DMCA Takedown Request”) (the “Designated Agent”).
To be effective, the notification must be in writing and contain the following information:
Counter-Notice: If your Content was removed (or access thereto was disabled) by us in connection with a request made to us pursuant to the above, and you believe that such Content is not so infringing, or that you have the appropriate authorizations and licenses from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to transmit and use such Content, you may send a written counter-notice (at the electronic or physical addresses noted above) containing the following information to the Designated Agent:
If a counter-notice is received by the Designated Agent, PTLINKED will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the provider of the applicable Content, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, PTLINKED has adopted a policy of terminating, in appropriate circumstances and at PTLINKED’S sole discretion, users who are deemed to be repeat infringers. PTLINKED may also at its sole discretion limit access to the Service and/or terminate all such access to the Service for any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
5. PRIVACY AND COOKIES
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks, and (b) changes to conform and adapt to technical requirements of connecting networks, devices or services. You understand and agree that PTLINKED may contact you via e-mail or otherwise with information relevant to your use of the Service, regardless of whether you or they have opted out of receiving advertising notices from us.
6. RELEASE AND LIMITATION OF LIABILITY
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND TO YOU OR ANY OTHER PERSON OR ENTITY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER RELATING TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, PERFORMANCE, SERVICE AVAILABILITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE, TIMELINESS, ACCURACY OF RESULTS OF ANYONE’S USE OF THE SERVICE, SERVICE SECURITY, SERVICE RELIABILITY, FREEDOM FROM ERROR, COMPLETENESS, SATISFACTION OF USER REQUIREMENTS OR EXPECTATIONS, OR OTHERWISE. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS ONLY. NO ADVICE OR INFORMATION THAT WE PROVIDE YOU OR ANY OTHER PERSON OR ENTITY SHALL CREATE ANY REPRESENTATION OR WARRANTY ON OUR PART.
UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY WHO USES, OR ATTEMPTS TO USE, ANY ASPECT OF THE SERVICE UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OUR PERFORMANCE OR FAILURE OF PERFORMANCE OF THE SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. NOR SHALL WE BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY WHO USES, OR ATTEMPTS TO USE, ANY ASPECT OF THE SERVICE FOR ANY INJURY THAT YOU OR ANY OTHER PERSON OR ENTITY SUFFERS AS A RESULT OF (A) ANY UNAUTHORIZED ACCESS TO, OR ALTERATION OF ANY CALL, OR ANY LOSS, INACCURACY OR CORRUPTION OF CONTENT TRANSMITTED ON ANY CALL, (B) ANY FAILURE OF THE SERVICE, (C) ANY ACTS OR OMISSIONS OF ANY THIRD PARTY, (D) ANY OTHER INJURY SUFFERED AS A RESULT OF THE USE OF OR OPERATION OF THE SERVICE, OR (E) ANY INFRINGEMENT CLAIM THAT ARISES OUT OF CONTENT THAT IS TRANSMITTED BY THE SERVICE. IN NO EVENT SHALL OUR CUMULATIVE LIABILITY HEREUNDER TO YOU FOR ANY INJURY, DAMAGES OR LOSS THAT YOU SUFFER AS RESULT OF, OR IN CONNECTION WITH, YOUR USE OF THE SERVICE EXCEED THE LESSER OF (X) THE AGGREGATE AMOUNT ACTUALLY PAID TO PTLINKED BY YOU FOR THE SERVICE DURING THE PRECEDING TWELVE (12) MONTHS AND (Y) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR THESE USER TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
You release us, and agree to indemnify, defend and hold harmless us, our suppliers, subsidiaries and affiliates and their respective officers, employees, directors, employees, agents, advisors, successors and assigns from and against any and all third party claims, damages, liabilities, losses, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) suffered or incurred thereby that arise out of or relate to (i) your use of the Service, (ii) violation by you of any of the prohibitions set forth in these User Terms, (iii) any Content Transmitted on any Call which you initiate or on which you participate, (iv) the reliance by anyone on any Content Transmitted by means of the Service, or your connection to the Service.
7. EXPORT CONTROL
You will not use of the Service in or from any country subject to U.S. government embargo (including as designated by the Office of Foreign Asset Control of the Treasury Department (“OFAC”) and the Department of Commerce (“DoC”) or any successor or designee agencies thereof). You represent and warrant to us that you are not an individual that is prohibited, denied or debarred by the U.S. government, including as designated by OFAC and/or DoC. The Service may be subject to restrictions and controls imposed by the United States Export Administration Act and other applicable transfer controls of the U.S. government or the government for any other country in which you or any other participant is located at the time of a Call (“Import/Export Controls”), and you agree that you will not use the Service in any location that is prohibited by such restrictions and controls. If we have obtained special Import/Export Control licenses or otherwise are actually aware of restrictions imposed by the Import/Export Controls, we will make commercially reasonable efforts to inform you thereof. Except for that obligation, you are otherwise solely responsible for determining whether use of the Service in a non-U.S. jurisdiction is permissible therein and your indemnity obligations hereunder includes the duty to indemnify us from claims arising from your use in violation of the Import/Export Controls and/or local laws.
The parties to these User Terms are independent contractors with respect to your use of the Service and nothing herein shall be construed to create a partnership, joint venture or agency relationship. You may not assign your rights under these User Terms to any third party without our prior written consent and any such purported assignment will be null and void ab initio. We may assign these User Terms to any third party without your consent. These User Terms are governed by, and will be construed according to the laws of the State of Minnesota, United States of America, without regard to conflict of laws rules that would otherwise apply laws of any other state or jurisdiction. You and we hereby consent to exclusive personal jurisdiction and venue in the federal and state courts located in Minnesota. You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action and we each waive any right that either of us may possess to a jury trial in connection with any and all disputes arising out of or related to these User Terms. You and we each waive any right that either of us may possess to a jury trial in connection with any and all disputes arising out of or related to these User Terms. You agree that regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of or related to use of the Service or these User Terms must be filed within one year after such claim or cause of action arose or be forever barred. Neither party shall be deemed to have waived any right hereunder unless you or we do so in writing. The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision. Any provisions of these User Terms which by their nature should survive the expiration or termination of these User Terms and the use of the Service shall survive such expiration or termination, and shall apply to the parties’ respective successors and permitted assigns. These User Terms, together with the applicable Enterprise license or subscription order and integrated terms (if any) constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous understandings and agreements between the parties concerning the subject matter hereof and cannot be amended except in writing, in accordance with their respective terms. You and we do not intend to have these User Terms confer any rights or privileges upon any third parties except our licensors and suppliers. Accordingly, there are no third party beneficiaries of these User Terms except our licensors and suppliers. PTLINKED’s performance of the Services is subject to existing laws and legal process, and nothing contained in these User Terms shall prevent PTLINKED from complying with governmental, judicial and law enforcement requests or requirements relating to your use of PTLINKED’S website, the Service or information provided to or gathered by PTLINKED with respect to such use.
9. CHANGES TO THESE USER TERMS
We may change these User Terms at any time, so we recommend that you review these User Terms in connection with each use of the Service. Your continued use of the Service shall constitute your acceptance of the then-current version of these User Terms. Should you find the Service or these User Terms unacceptable at any point, your sole recourse shall be to cease using the Service.
This End User License Agreement will apply to you if you download, install or use the software in the PTLINKED and PTLINKED PRO products (“Products”). Please do not download, install or use any software or product made available by PTLINKED before you understand and agree with the terms of this End User License Agreement.
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING PTLINKED OR PTLINKED-SUPPLIED SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. THIS LICENSE OF THE SOFTWARE IS VALID ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. YOUR ACCEPTANCE WILL BE BY INSTALLING OR DOWNLOADING THE SOFTWARE, OR USING THE EQUIPMENT OR PRODUCT THAT CONTAINS THIS SOFTWARE. YOU ARE BINDING YOURSELF AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, “CUSTOMER”) TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN PTLINKED IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU SHOULD NOT ACCESS THE PRODUCT OR DOWNLOAD, INSTALL OR USE THE SOFTWARE.
Conditioned upon compliance with the terms and conditions of this Agreement, PTLINKED grants to Customer a nonexclusive and nontransferable license to use for Customer’s internal business purposes the Software and the Documentation for which Customer has paid the required license fees. “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Software and made available by PTLINKED with the Software in any manner. Customer’s license to use the Software shall be limited to, and Customer shall not use the Software in excess of, a single PTLINKED Product as set forth in the applicable purchase order which has been accepted by PTLINKED and for which you have been paid the required license fee. Unless otherwise expressly provided in the Documentation, Customer shall use the Software solely as embedded in, for execution on, or for communication with products licensed by Customer and used for Customer’s internal business purposes. No other uses of the Software are authorized by this Agreement and any unauthorized use of the Software shall be a violation of the terms of this license and Agreement.
Use of Products
Products are not authorized for use in critical safety or other applications where any failure may reasonably be anticipated to result in bodily injury, loss of life, or catastrophic damage to property. If Customer uses the Products, Customer acknowledges that such use is at Customer’s sole risk. Customer will indemnify, defend and hold PTLINKED and its suppliers and licensors harmless from and against any and all liabilities and costs arising out of or in connection with such use.
THE PTLINKED PRO SOFTWARE AND CONTENT AND ALL OTHER PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED TO COMPANY “AS IS.” ALL WARRANTIES WITH RESPECT THERE TO, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED BY PTLINKED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, FREEDOM FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
PTLINKED will make commercially reasonable efforts to ensure that access to the PTLINKED Software and Content will generally be available, but cannot guarantee uninterrupted or error free access. Interruptions of service may also result from maintenance of PTLINKED changes or enhancements to the PTLINKED PRO Software and Content. PTLINKED will not be responsible for any delay or down time. If access to PTLINKED PRO is interrupted for five (5) consecutive days, Company will be entitled to a pro rata reduction in the annual Enterprise License Fee for the period of the interruption.
This is a license, not a transfer of title, to the Software and Documentation, and PTLINKED and/or its suppliers and licensor(s), retain(s) ownership of all copies of the Software and Documentation and intellectual property rights of the Product and Software. Customer acknowledges that the Products, Software and Documentation contain intellectual property rights (such as international and United States trade secrets, copyrights, patents, and patents pending) of PTLINKED, its suppliers or licensors including but not limited to the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, Customer shall have no right and Customer specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person or entity, or use the Software on unauthorized equipment, and Customer acknowledges that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to or otherwise modify or adapt the Product, Software or create derivative works based upon the Software, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly required to be permitted under applicable law notwithstanding this restriction and subject to the requirements thereof; (iv) use or permit the Software to be used to perform services for third parties, whether on a rental, service bureau or time-sharing basis or otherwise, without the express written authorization of PTLINKED; or (v) disclose, provide, or otherwise make available trade secrets contained within the Products, Software and Documentation in any form to any third party without the prior written consent of PTLINKED. Customer shall implement reasonable security measures to protect such trade secrets. To the extent required by law, and at Customer’s written request, PTLINKED shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of PTLINKED’s applicable fee, if any. Customer shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which PTLINKED makes such information available.
Unless otherwise expressly specified all taxes and duties relating to this Agreement, the Products, or Software are excluded and shall be Customer’s responsibility.
Software, Upgrades and Additional Copies
For purposes of this Agreement, “Software” shall include (and the terms and conditions of this Agreement shall apply to) computer programs, including firmware, as provided to Customer by PTLINKED, and any upgrades, updates, bug fixes or modified versions thereto (collectively, “Upgrades”) or backup copies of the Software licensed or provided to Customer by PTLINKED. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES.
Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of PTLINKED.
Term and Termination
This Agreement and the license granted herein shall remain effective until terminated as specified in the related order or under this section. Customer may terminate this Agreement and the license any time by destroying all copies of Software and any Documentation. In no event shall the Customer receive a refund. Customer’s rights under this Agreement will terminate immediately without notice from PTLINKED if Customer fails to comply with any provision of this Agreement. Upon termination, Customer shall destroy all copies of Software and Documentation in its possession or control. All confidentiality obligations of Customer and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement.
Products, Software and Documentation, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Products, Software and Documentation.
United States Government Commercial License Rights
This section applies only if Customer is a United States Government entity. The Software and Documentation qualify as “commercial items” consisting of “commercial computer software” and “computer software documentation” as such terms are defined and used at FAR (48 C.F.R.) 2.101 and FAR 12.212. Customer agrees to be bound by this Agreement, except for any provisions that are contrary to Federal law, and further agrees that any provisions that are contrary to Federal law will be read out of this Agreement without impacting the validity and enforceability of any other provisions of this Agreement.
Limited Warrant Statement and Disclaimer of Liabilities
REGARDLESS WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL PTLINKED OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF PTLINKED OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall PTLINKED’s or its suppliers’ or licensors’ liability to Customer, whether in contract, tort (including negligence), breach of warranty, or otherwise, exceed the price paid by Customer for the Software that gave rise to the claim. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or any other product or service delivered by PTLINKED. Customer acknowledges and agrees that PTLINKED has set its prices to end users and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, United States, without reference to or application of choice of law rules or principles. The exclusive venue for any dispute arising under this Agreement shall be within the competent courts in the State of Minnesota, USA. The United Nations Convention on the International Sale of Goods shall not apply. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect. This Agreement has been written in the English language, and the parties agree that the English version will govern.
(a) PTLINKED will defend or settle, at its expense, any action brought against Customer based upon the claim that the Software or Product, if used within the scope of the license granted under this Agreement, directly infringe a registered United States, European Union or Commonwealth patent or copyright; provided, however, that: (i) Customer shall notify PTLINKED promptly in writing of any such claim; (ii) Customer shall not enter into any settlement or compromise any claim without PTLINKED’s prior written consent; (iii) PTLINKED shall have sole control of any such action and settlement negotiations; and (iv) Customer shall provide PTLINKED with information and assistance, at PTLINKED’s request, necessary to settle or defend such claim. PTLINKED agrees to pay all damages and costs finally awarded against Customer attributable to such claim. The foregoing states the sole liability of PTLINKED and the exclusive remedy of Customer for any infringement of intellectual property rights by the Product or any other items provided by PTLINKED hereunder. (b) If the Product or Software becomes, or in the opinion of PTLINKED may become, the subject of a claim of infringement of any third party right, PTLINKED may, at its option and in its discretion: (i) procure for Customer the right to use the Product free of any liability; (ii) replace or modify the Product to make it non-infringing; or (iii) repurchase the applicable licenses or Products. (c) Customer will defend or settle, at its expense, any action brought against PTLINKED based upon the claim that any modifications to the Product or combination of the Product with products infringes or violates any third party right; provided, however, that: (i) PTLINKED shall notify Customer promptly in writing of any such claim; (ii) PTLINKED shall not enter into any settlement or compromise any such claim without Customer’s prior written consent; (iii) Customer shall have sole control of any such action and settlement negotiations; and (iv) PTLINKED shall provide Customer with information and assistance, at Customer’s request and expense, necessary to settle or defend such claim. Customer agrees to pay all damages and costs finally awarded against PTLINKED attributable to such claim. (d) Notwithstanding Subsection (a) above, PTLINKED assumes no liability hereunder for, and shall have no obligation to defend Customer or to pay costs, damages or attorney’s fees for, any claim based upon any modifications to the Product not provided by PTLINKED or combination of the Product with other products.
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