Telasight, Inc. Terms of Service
(Last updated September, 2019)
These Terms of Service (these "Terms of Service") set forth the terms and conditions upon which Telasight, Inc. ("Telasight") offers you, our third party End-Users (each, an "End-User"), access to Telasight’s website available at https://www.telasight.com/ (or such successor site as determined by Telasight) (collectively, the "Site") and Telasight's proprietary web-based telemedicine and telehealth platform (the "Service") made available through the Site and/or the Telasight mobile application (the "App"). By clicking “I Agree” during the registration process, or otherwise by accessing or otherwise using the Site and/or the Service, you agree to be bound by these Terms of Service. If you do not agree to these Terms of Service, exit the Site immediately and do not access or use the Site or the Services. This is a legally enforceable contract.
LICENSE; RESERVATION OF RIGHTS
Limited License to Use the Site and Service. The information and materials on this Site are provided for general informational purposes. You may use this Site solely for the purpose of learning about Telasight and/or purchasing its services and products. You may not use, reproduce or distribute the text, graphics, downloads, tools or any other content on this Site for any other purpose. Subject to End-User’s compliance with the terms and conditions of these Terms of Service, Telasight hereby grants to End-User a limited, personal, non-exclusive, non-transferable, license to use the App and/or the Site to access Service solely for the End-User’s own treatment consultation purposes. Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by Telasight to End-User hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved unto Telasight.
Other License Restrictions. End-User shall not (a) copy or modify the App, Site, or Service for any purpose; (b) reverse engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the App, Site or Service; or (c) distribute, disclose, market, rent, lease or otherwise transfer the App, Site or Service to any other person or entity.
Intellectual Property Rights. Telasight retains all intellectual property rights in and to the App, Site and Service and all related documentation interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. Except for rights specifically provided in this Agreement, End-User hereby assigns to Telasight all other intellectual property rights it may now or hereafter possess in the Service, Site, or App and all related documentation, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights. End-User also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the App, Site or Service and any related documentation delivered to End-User by Telasight and all whole or partial copies thereof.
Other Agreements. By using the Site and/or the Services, End-User hereby agrees to the Telasight Online Privacy Policy located at www.telasight.com (the “Privacy Policy”), which as may be updated from time to time by Telasight in accordance with the terms thereof and which is hereby expressly incorporated into these Terms of Service by this reference.
ACCESS AND USE OF THE TELASIGHT SERVICE
Authorized Access and Use. End-User must provide Telasight with current, complete and accurate information (including its email address) as prompted by the applicable registration form in order to register for use of the Service. End-User must identify one or more agents of End-User who will be authorized by End-User to have access to and use the Service on behalf of End-User (“Authorized Users”). End-User will not permit Authorized Users to access and use the Service except solely in accordance with the terms and conditions of these Terms of Service. Telasight has no obligation to verify the identity of any person who gains access to the Service through End-User’s account. End-User is solely responsible for monitoring its Authorized Users' access to and use of the Service, and for any failure by any Authorized User to comply with these Terms of Service; a failure to comply with these Terms of Service by an Authorized User is a failure by End-User. End-User shall use, safeguard and periodically change passwords in a commercially reasonable manner and time, to prevent unauthorized access to the Service. End-User is responsible to maintain the privacy and security of its Authorized Users’ login information, including user names and passwords, and not allow others to use the login information. End-User will notify Telasight immediately of any breach in secrecy, security, or unauthorized use or theft of its login information (and provide properly documented evidence as reasonably requested by Telasight). End-User is responsible for any and all actions taken by any person that has access to its account. End-User agrees to immediately notify Telasight of any potential breaches of the login information and of the departure of any employee with access to the login information.
Suspension of Access. Telasight may in its discretion suspend End-User's access to, or reasonably restrict any use of, the Service temporarily, in whole or in part, if, and so long as, in Telasight’s sole judgment, there is a security risk that may interfere with the proper continued provision of the Service or End-User is misusing the Service, has breached these Terms of Service, or is or may be engaged in illegal activity. Telasight will use commercially reasonable efforts under the circumstances to provide End-User with notice and an opportunity to remedy such violation or threat at End-User's cost.
Third Party Offerings. Telasight may directly or indirectly use certain third party providers (“Third Party Providers”) provide links to websites or applications and access to content, products, services, utilities, software, hardware, systems, networks, connections, data, content, documents or other materials from third parties, including other users, advertisers, affiliates and sponsors (“Third Party Materials”). End-User acknowledges and agrees that (a) access and use of Third Party Materials may be subject to additional terms and conditions as made available by such Third Party Providers and End-User will comply with all of its obligations, relating to Third Party Providers and Third Party Materials under the terms of any agreement with such Third Party Providers and/or the providers of such Third Party Materials, and (b) Telasight is not responsible for the availability or content of any such Third Party Products, including any related opinions, advice, statements or advertisements. Further, End-User represents and warrants to Telasight that End-User shall agree to and comply with Third Party Providers’ terms and conditions and shall only use any such Third Party Materials in accordance with the independent rights End-User has directly secured from the providers of such Third Party Materials.
LIMITED WARRANTIES; DISCLAIMERS
Telasight Warranty. Telasight warrants that the Service will operate in substantial conformance its published documentation. Telasight’s sole obligation and End-User’s sole remedy with respect to any failure of the Service to substantially conform to the documentation therefore is for Telasight to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for End-User to terminate these Terms of Service pursuant to Section 6.3.
End-User Content. “End-User Content” means data, information, images or other content uploaded to the Service through the Site or App or otherwise used in connection with the End-User’s use of the Service. End-User (or its patients or licensors) shall own and continue to own all right, title and interest in and to the End-User Content. End-User hereby grants to Telasight a royalty-free license to use the End-User Content in connection with the use thereof through the App, Site and Service and for any use permitted by the Privacy Policy and/or the Business Associate Agreement entered into by and between End-User and Telasight in connection with these Terms of Service (the “BAA”), which is hereby expressly incorporated into these Terms of Service by this reference. In the event of any conflict between these Terms of Service or the Privacy Policy and the BAA with respect to the processing of Protected Health Information (as defined in the BAA), the BAA shall control solely with respect to such subject matter. End-User hereby represents, warrants and covenants to Telasight that: (a) End-User has collected, compiled and generated all the End-User Content in compliance with all applicable federal, state and local laws, rules, regulations, ordinances, statutes, treaties or orders (“Applicable Laws”); (b) the provision of all End-User Content to Telasight hereunder is in compliance with all Applicable Laws; (c) End-User has all rights necessary to grant Telasight the right to use and disclose all End-User Content in accordance with the terms of these Terms of Service; and (d) all End-User Content provided or otherwise made available to Telasight is accurate and complete.
Information Security. Each party will implement and maintain information security controls, policies and procedures that include administrative, technical and physical safeguards designed to: (a) maintain the security and integrity of End-User Content in its possession or control; (b) protect against anticipated threats or hazards to the security or integrity of the Service; and (c) protect against unauthorized access or use of such End-User Content. Except to the extent prohibited by Applicable Law or such party’s contractual obligations to third parties, each party will promptly notify the other party upon becoming aware of any unauthorized access to or disclosure of End-User Content (i) residing on any of such party’s systems, (ii) under the control of such party, or (iii) for which such party is responsible for managing in connection with the Service (a “Security Event”) and will take action as reasonably determined by such party to remediate, mitigate and respond to any such Security Event.
Testimonials, Photography and Images. Favorable comments or endorsements are noted accordingly, but do not guarantee, or otherwise imply, any future outcomes or successes in connection with End-User’s use of the Site or Service. Photographs of individuals on the Site do not necessarily express or imply that the individuals are associated with or endorse the services rendered by Telasight (including, without limitation, the Service).
Warranty Disclaimer. EXCEPT AS SET FORTH IN THIS ARTICLE 2, TELASIGHT DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TELASIGHT DOES NOT WARRANT THAT THE APP, SITE OR SERVICE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT ALL FAILURES OF THE APP, SITE OR SERVICE TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. TELASIGHT MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED BY THE APP, SITE OR SERVICE. ADVICE, RECOMMENDATIONS, AND OTHER INFORMATION (COLLECTIVELY, “MEDICAL INFORMATION”) PROVIDED BY TELASIGHT CONSULTANTS PARTICIPATING IN THE SERVICE (“CONSULTANTS”) ARE NOT ENDORSED, VETTED, OR APPROVED BY TELASIGHT IN ANY WAY. YOUR USE OF ANY SUCH MEDICAL INFORMATION IS AT END-USER’S OWN RISK. ANY DISPUTES OR CLAIMS IN CONNECTION WITH SUCH MEDICAL INFORMATION ARE SOLELY BETWEEN END-USER AND THE CONSULTANT PROVIDING SUCH MEDICAL INFORMATION. EXCEPT FOR MEDICAL INFORMATION PROVIDED BY CONSULTANTS TO END-USER, NOTHING ON THE SITE, APP OR ANY COMPONENTS THEREOF (INCLUDING, WITHOUT LIMITATION, THE SERVICE) IS INTENDED AS MEDICAL ADVICE OR ANY OTHER KIND OF ADVICE WHATSOEVER. TELASIGHT MAKES NO WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF INFORMATION ON THE SIGHT. TELASIGHT MAKES NO WARRANTY WHATSOEVER AS TO THE AVAILABILITY OF CONTENT OF THE SITE OR SERVICE OR THE ENTIRE SITE ITSELF.
End-User Solely Responsible for Equipment, Hardware and Third Party Materials. End-User acknowledges and agrees that End-User retains sole and exclusive responsibility for any equipment, hardware or other devices used by End-User in connection with the Site, App, and Service (“Underlying Equipment”). Telasight is not responsible for and hereby disclaims all responsibility and liability for the Underlying Equipment or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto. End-User acknowledges and agrees that the Underlying Equipment is solely within End-User’s control. Further, Telasight shall not be liable or responsible for any Third Party Provider or any Third Party Materials, or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto.
Fees. End-User agrees to pay to Telasight the fees applicable to End-User’s subscription as indicated on the fee schedule made available on the Site at www.telasight.com (the “Fees”) in accordance with the terms and conditions set forth in this Article 3.
Fee Increases. Fees may be increased or otherwise modified from time to time by Telasight. Any such increases or modifications to the Fees shall take effect ten (10) days following notification to End-User via email (the “Notification Period”). If End-User does not agree to such increased or modified Fees, End-User may terminate these Terms of Service by providing notice to Telasight during the Notification Period. End-User acknowledges and agrees that its continued access to or use of the Service after the Notification Period constitutes its immediate acceptance of any such modified Fees.
Taxes. All Fees do not include any applicable taxes, and End-User will be responsible for paying any and all applicable sales, software license, use, value added, excise, property, withholding tax or any other taxes due in connection with the performance of these Terms of Service (“Taxes”) whether imposed on End-User or Telasight; provided, however, that End-User shall not be required to pay any Taxes applicable to Telasight’s net income. If Telasight pays any Tax that is payable by End-User in accordance with the foregoing, End-User shall reimburse Telasight for the amount of such Tax upon receiving an invoice therefor.
Payment Terms. All Fees will be due and payable by End-User within thirty (30) days after their respective invoice date from Telasight. If any Fees are not paid by End-User by the due date, Telasight may, without prejudice to any other right or remedy, charge interest on a day to day basis both before and after any judgment at a rate equal to the lesser of 1.5% per month or the maximum amount permitted by Applicable Law (as defined below), from the due date for payment to the date of actual payment.
No Setoff; No Refunds. All amounts due under these Terms of Service will be paid in full by End-User to Telasight and End-User will not be entitled to assert any credit, set-off or counterclaim against Telasight in order to justify withholding payment of any such amount in whole or in part. For the avoidance of doubt, Fees assessed on a periodic basis (e.g., annually) shall be payable by End-User throughout the term of these Terms of Service, in accordance herewith, regardless of whether End-User has actually utilized the Service. End-User acknowledges and agrees that all payment obligations and fees and charges paid or payable by End-User under these Terms of Service are non-cancellable and non-refundable for any reason .
INDEMNIFICATION; UNAUTHORIZED USE
Indemnification. End-User hereby agrees to indemnify and hold harmless Telasight from any and all damages, costs, expenses (including, without limitation, reasonable attorneys’ fees), liabilities and losses suffered or incurred by Telasight in connection with any actions, proceedings, suits or other claims (collectively, “Claims”) against Telasight to the extent such Claims arise from or in connection with (a) End-User’s use of the Service other than as expressly authorized in accordance with the terms of these Terms of Service, (b) End-User’s provision of the End-User Content or Telasight’s use of the End-User Content to the extent permitted under these Terms of Service, including any actual or alleged volitions of third party intellectual property by such End-User Content, or (c) End-User’s breach of these Terms of Service.
Notification of Unauthorized Use. End-User shall promptly notify Telasight in writing upon its discovery of any unauthorized use or infringement of the App, Site or Service, or the related documentation, or Telasight's intellectual property rights with respect thereto. Telasight shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Telasight brings such an action or proceeding, End-User shall cooperate and provide full information and assistance to Telasight and its counsel in connection with any such action or proceeding.
Term. End-User’s access to the App, Site or Service shall begin on the date End-User registers for the Service and shall continue for a period of one (1) year from such date (the “Initial Term”) unless terminated earlier under the provisions of this Article 5. At the conclusion of the Initial Term, the term shall automatically renew for additional one (1) year periods (each, a “Renewal Term” and together with the Initial Term, collectively, the “Term”), unless notice of termination is given at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable.
Termination for Cause. In the event that either party is in material breach of the terms of these Terms of Service, the non-breaching party may terminate these Terms of Service on thirty (30) days prior written notice (or fifteen (15) days in the event of a breach of End-User’s payment obligations hereunder); provided however, that these Terms of Service shall not be terminated as provided for herein in the event that the breaching party cures the breach to the reasonable satisfaction of the non-breaching party within such notice period.
Termination Without Cause. Telasight may terminate these Terms of Service for any reason upon written notice to End-User, provided that End-User shall not be required to pay any future Fees attributable to the remainder of the Term after the effective date of such termination without cause and Telasight will refund any prepaid, unused Fees for the remainder of the then-current Term after the effective date of such termination without cause. End-User may terminate these Terms of Service for any reason upon written notice to Telasight and cancelling End-User’s account, provided that End-User shall remain required to pay any Fees attributable to the remainder of the then-current Term after the effective date of such termination without cause by End-User and Telasight shall not be obligated to refund any prepaid, unused Fees for the period of the Term after the effective date of such termination without cause by End-User.
Effects of Termination. In the event of any expiration or termination of these Terms of Service, End-User and its Authorized Users shall have no more access to the Service and End-User and all Authorized Users’ passwords will become invalid. All rights and obligations that accrued prior to termination or expiration of these Terms of Service or by their nature are intended to survive the termination or expiration of these Terms of Service, shall survive expiration or termination of these Terms of Service, including without limitation the provisions of Sections 1.3, 1.4, 2.3, 3.5, 4, 5, 6.4, 7, and 8.
Limitations of Liability. IN NO EVENT SHALL Telasight BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF CONTENT OR DATA, INTERRUPTION OF BUSINESS, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER TELASIGHT IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE AGGREGATE LIABILITY OF TELASIGHT FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THE SERVICES, THESE TERMS OF SERVICE OR ITS SUBJECT MATTER SHALL NOT EXCEED THE AMOUNT PAID BY END-USER TO TELASIGHT IN CONNECTION WITH THE SERVICE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TELASIGHT SHALL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, OR DAMAGES IN CONNECTION WITH ERRORS, OMISSIONS OR INACCURACIES OF THE SITE, APP OR SERVICE, OR ANY OTHER ACTION OR DECISION MADE IN RELIANCE OF ANY OF THE FOREGOING. TELASIGHT ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS ON THIS SITE, APP OR SERVICE AND COMPONENTS THEREOF.
Essential Part of the Bargain. The parties acknowledge that the disclaimers and limitations set forth in this Section 7 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.
Export Compliance. The Service and the App may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to use the App or access the Service without prior written permission from Telasight once granted by the appropriate jurisdiction. The rights and obligations of End-User shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. End-User shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. End-User shall indemnify and hold harmless Telasight from and against any and all losses, claims and expenses incurred by Telasight as a result of the breach of End-User's obligations under this Section.
Independent Contractors. In making and performing these Terms of Service, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
Force Majeure. In the event that Telasight is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, Telasight shall not be liable to the End-User for any damages resulting from such failure to perform or otherwise from such causes.
Governing Law. These Terms of Service and its subject matter shall be governed in accordance with the law of the State of Kentucky, without reference to its conflict of laws principles. The courts of general jurisdiction located within Louisville, Kentucky, will have exclusive jurisdiction over any and all disputes arising out of, relating to or concerning these Terms of Service and/or the Site or App or in which these Terms of Service and/or the Site or App are a material fact.
Public Statements. Either party may disclose the existence of these Terms of Service but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other.
Assignment. End-User may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder to any third party without the prior written consent of Telasight. Any purported assignment in contravention of this Section shall be null and void. Telasight may assign or transfer these Terms of Service or any of its rights or privileges, or delegate or subcontract any of its duties or obligations hereunder to any third party without notice to or consent of End-User. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of Telasight, to the address set forth on the Site to the attention of the CEO; and (b) in the case of End-User, to the address set forth in its account information provided at the time of registration for the Service.
Entire Agreement; Amendment. These Terms of Service (including the documents specifically incorporated herein by reference) constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. Except as otherwise provided herein, these Terms of Service may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both parties and attached hereto.
Waivers. A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.