THIS IS A LEGAL DOCUMENT BETWEEN YOU (“THE SUBSCRIBER”) AND Chart-MD, LLC STATING THE TERMS AND CONDITIONS UNDER WHICH SUBSCRIBER MAY USE THE SOFTWARE AND SERVICES. BY CLICKING ON THE ACCEPT BUTTON OR USING OR ACCESSING THE SOFTWARE OR SERVICES, SUBSCRIBER INDICATES THAT SUBSCRIBER HAS READ AND UNDERSTANDS THE AGREEMENT AND AGREES TO BE BOUND BY THE TERMS SET FORTH IN THE AGREEMENT. IF SUBSCRIBER DOES NOT AGREE WITH THE AGREEMENT, SUBSCRIBER SHALL CLICK THE REJECT BUTTON AND SHALL NOT USE OR ACCESS THE SOFTWARE OR SERVICES.
VoiceOrders-MD.com SUBSCRIBER AGREEMENT
This VoiceOrders-MD.com Subscriber Agreement ("Agreement") is made as of the Effective Date, by and between Chart-MD, LLC, a Virginia corporation with offices located at Courtney Lane, Elkton, VA (“Chart-MD, LLC”) and the party identified as Subscriber on the Subscriber Application (“Subscriber”).
WHEREAS, Chart-MD, LLC developed and owns that certain software entitled VoiceOrders-MD.com (“Software” as defined hereinafter), which provides tools for customers to create and maintain web sites on the Internet through the Software web page (“Services” as defined hereinafter); and
WHEREAS, Subscriber desires electronic assistance and tools to create and maintain an Internet web site; and
WHEREAS, Subscriber is familiar with the Software and has determined that the Software will satisfy the requirements of Subscriber; and
WHEREAS, Subscriber desires to access the Software and use the Services in accordance with the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Subscriber and Chart-MD, LLC hereby agree as follows:
ARTICLE I: RECITALS AND DEFINITIONS
Section 1.01 – Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 – Definitions: The following definitions shall apply:
(1) Access: The term “access” and variants thereof (including, without limitation, “accessing” and “accessible”) shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
(2) Associates: The term “Associates” shall mean employees of Chart-MD, LLC and independent contractors hired by Chart-MD, LLC.
(3) Authorized Person: The term “Authorized Person” shall mean a person or organization who is authorized in writing by Chart-MD, LLC to receive Proprietary Information and who agrees to maintain the propriety and confidentiality of such Proprietary Information.
(4) Cancellation Notice: The term “Cancellation Notice” shall mean that written notice sent by Chart-MD, LLC to Subscriber seeking to cancel this Agreement because of breach by Subscriber.
(5) Consulting Services: The term “Consulting Services” shall mean those certain consulting, support, and training services in connection with the VoiceOrders-MD.com Technology and Services, as requested by Subscriber and approved by Chart-MD, LLC in writing and provided to Subscriber by Chart-MD, LLC at Chart-MD, LLC’s then current time and material rates.
(6) Data: The term “Data” shall mean any and all data and information contained in or obtained from the Software.
(7) Deliverable: The term “Deliverable” shall mean that certain Software required to use the Services as made available to Subscriber by Chart-MD, LLC on the Chart-MD, LLC website.
(8) Documentation: The term “Documentation” shall mean any and all written manuals, user’s guides, and Policy Statements concerning the Data, Software and Services, as provided in printed or electronic form to Subscriber by Chart-MD, LLC.
(9) Domain Name: The term “Domain Name” shall mean that certain alphanumeric name by which a web site is known on the Internet.
(10) Effective Date: The term “Effective Date” shall mean the first date by which Chart-MD, LLC approves the Subscriber Application and assigns a Password to Subscriber.
(11) Fee Schedule: The term “Fee Schedule” shall mean that certain schedule of fees and payment terms for access to the Software and use of the Services by Subscriber, as made accessible by Chart-MD, LLC via the Chart-MD, LLC website and as modified by Chart-MD, LLC from time to time.
(12) Internet: The term “Internet” shall mean that certain global network of computers commonly referred to as the Internet.
(13) VoiceOrders-MD.com Technology: The term “VoiceOrders-MD.com Technology ” shall mean the Password, Data, Deliverable, Software, System, Documentation, and any and all Technology relating to the Software.
(14) Licensed Content: The term “Licensed Content” shall mean third party Technology incorporated in whole or part into the VoiceOrders-MD.com Technology.
(15) Password: The term “Password” shall mean that certain user name and password assigned by Chart-MD, LLC to Subscriber for purposes of accessing the Software and Services.
(16) Policy Statement: The term “Policy Statement” shall mean that certain written statement of policies (in printed or electronic form) concerning Subscriber access to the VoiceOrders-MD.com Technology and use of the Services as may be adopted by Chart-MD, LLC and as modified by Chart-MD, LLC from time-to-time.
(17) Proprietary Information: The term “Proprietary Information” shall mean the Password, Data and any and all information in connection with the VoiceOrders-MD.com Technology which is disclosed to Subscriber by Chart-MD, LLC or learned or obtained by Subscriber and is not: (i) conveyed to Subscriber by a third party; (ii) released by Chart-MD, LLC without restriction; (iii) independently developed by Subscriber; and (iv) required by Court Order to be released by Subscriber.
(18) Registration Company: The term “Registration Company” shall mean an entity that administers the valid registration and maintenance of Domain Names.
(19) Registration Fee: The term “Registration Fee” shall mean that certain fee charged by Chart-MD, LLC to Subscriber for registration of a Domain Name to host the Subscriber Technology, as set forth in the Fee Schedule.
(20) Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. § 1839.
(21) Services: The term “Services” shall mean those certain web site development and consulting services as provided by Chart-MD, LLC to Subscriber through the Software for purposes of accessing and retrieving Data and inputting and modifying Subscriber Content to create Subscriber Technology.
(22) Software: The term “Software” shall mean that certain software that contains tools for creating and maintaining Internet websites, which is referred to by the parties as VoiceOrders-MD.com, as made accessible to Subscriber by Chart-MD, LLC via the Internet.
(23) Subscriber Application: The term “Subscriber Application” shall mean that certain completed electronic form for requesting a Password and access to the Software under the terms of this Agreement as submitted to Chart-MD, LLC by Subscriber and approved by Chart-MD, LLC.
(24) Subscriber Content: The term “Subscriber Content” shall mean any information inputted by Subscriber into the Software using the Services.
(25) Subscriber Fee: The term “Subscriber Fee” shall mean those certain fees charged by Chart-MD, LLC to Subscriber for access to the Software and use of the Services under this Agreement for the Term, as identified in the Fee Schedule.
(26) Subscriber Technology: The term “Subscriber Technology” shall mean any and all Technology or information developed by Subscriber using the Services.
(27) System: The term “System” shall mean computer systems and communications equipment owned or leased by Chart-MD, LLC and used for hosting the Subscriber Technology.
(28) Technology: The term “Technology” shall mean any and all information, data, applications, methodologies, techniques, ideas, solutions, processes, adaptations, products, concepts, procedures, works of authorship, software, scripts, documentation, flow charts, diagrams, software libraries, databases, data structures, data models, data dictionaries, fields, records, screen displays and graphic interfaces.
(29) Term: The term “Term” shall mean a one-month period of time starting on the Effective Date and continuing one month thereafter and shall be renewable as provided under Section 4.01 of this Agreement.
(30) Unauthorized Access: The term “Unauthorized Access” shall mean any access to the Software and the Services except for the exclusive purposes of using the Services; accessing, retrieving, and viewing Data; inputting, retrieving, modifying, or deleting Subscriber Content; and creating Subscriber Technology.
(31) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the Software or the Services except for: (1) employees of Subscriber authorized by Subscriber to access the Software or the Services for purposes of using the Services; accessing, retrieving, and viewing Data; inputting, retrieving, modifying, or deleting Subscriber Content; and creating Subscriber Technology, and (2) Authorized Persons who are authorized in writing by Chart-MD, LLC to access the Software and the Services.
ARTICLE II: SCOPE OF SERVICES
Section 2.01 – Access: Chart-MD, LLC hereby grants Subscriber a non-exclusive and non-transferable license to access the Software, Services, Deliverable, and Documentation during the Term, subject to the terms and provisions of this Agreement.
Section 2.02 – Deliverable: On the Effective Date, Subscriber shall download and install the Deliverable on a computer for the purposes of using the Services. Subscriber hereby acknowledges and agrees that access to the Software requires use of the Deliverable and Subscriber shall be solely responsible for downloading, implementing, configuring, and maintaining the Deliverable. Upon request by Subscriber and approval by Chart-MD, LLC in writing, Chart-MD, LLC shall perform Consulting Services to assist Subscriber to implement the Deliverable.
Section 2.03 – Subscriber Content: During the Term, Subscriber may input Subscriber Content into the Software using the Services; retrieve, modify, and delete Subscriber Content using the Software and the Services; and create Subscriber Technology using Software and the Services. Subscriber shall not modify or delete any Data or information except Subscriber Content.
Section 2.04 – Password: Chart-MD, LLC shall assign Subscriber a Password for purposes of accessing the Software and using the Services during the Term. Subscriber hereby accepts responsibility for, and shall be liable for, all access to the Software, Data and Services in connection with the Password. Subscriber shall access the Software and the Services only using the Password. Subscriber shall be responsible for the confidentiality and maintenance of the Password. Modification and termination of the Password shall be subject to written approval of Chart-MD, LLC. All assignments of the Password by Subscriber shall be void.
Section 2.05 – Unauthorized Access: Subscriber shall prevent Unauthorized Users from accessing the Software and the Services using the Password. Subscriber shall prevent Unauthorized Access to the Software and the Services using the Password.
Section 2.06 – Lawful Purpose: Subscriber represents and warrants that Subscriber access to the VoiceOrders-MD.com Technology shall not violate any contract, statute, rule, regulation or other obligation under which Subscriber is bound. Subscriber represents and warrants that Subscriber shall not access the VoiceOrders-MD.com Technology or Services to conduct or solicit the performance of any business or activity that is tortious or prohibited by law.
Section 2.07 – Policy Statement: Subscriber shall comply with the Policy Statement. Chart-MD, LLC may modify the Policy Statement from time to time in the exclusive discretion of Chart-MD, LLC. Such modified Policy Statement shall be deemed accepted and approved by Subscriber upon notice to Subscriber as provided under Section 8.09 of this Agreement.
Section 2.08 – Reasonable Assistance: All telephone consultations shall be subject to the discretion of Chart-MD, LLC. If Subscriber requires an excessive amount of telephone consultations with Chart-MD, LLC concerning use of the Software or Services (as determined in the exclusive discretion of Chart-MD, LLC) Subscriber shall request Consulting Services performed by Chart-MD, LLC.
ARTICLE III: HOSTING SERVICES
Section 3.01 – Hosting: During the Term, Chart-MD, LLC shall host the Subscriber Technology on the System to provide Subscriber access to the Subscriber Technology on the Internet. Subscriber hereby acknowledges and agrees that access to the Subscriber Technology requires that the Subscriber Technology be hosted on the System. During the Term, Chart-MD, LLC shall be responsible for any and all direct costs incurred by Chart-MD, LLC to host the Subscriber Technology. Upon termination or cancellation of this Agreement, Chart-MD, LLC shall no longer host the Subscriber Technology and Subscriber shall not have access to the Subscriber Technology. Upon request by Subscriber and approval of Chart-MD, LLC in writing, Chart-MD, LLC shall assist Subscriber to transfer the Subscriber Content to Subscriber or a third party upon termination or cancellation of this Agreement.
Section 3.02 – Back-Up: Chart-MD, LLC shall perform routine backup of all files stored on the System.
Section 3.03 – Domain Name Registration: Subscriber hereby acknowledges and agrees that Subscriber shall be responsible for registering a Domain Name(s) for the Subscriber Technology with a Registration Company, except as otherwise agreed by the parties. Upon request by Subscriber in the Subscription Application and payment of the Registration Fee, Chart-MD, LLC shall apply to register Subscriber’s desired Domain Name with a Registration Company. In the event such desired Domain Name is not available, rejected, or opposed by a third party, Chart-MD, LLC shall explain to Subscriber in writing the reasons for the unavailability or rejection of such Domain Name. Upon request by Subscriber, Chart-MD, LLC shall apply to register another Domain Name subject to the foregoing procedures. Chart-MD, LLC shall use Subscriber’s registered Domain Name as specified by Subscriber to host the Domain Name and the Subscriber Technology on the System.
Section 3.04 – Dial-Up Accounts: The Services provided to Subscriber by Chart-MD, LLC do not include Internet Service Provider (ISP) accounts. Subscriber hereby acknowledges and agrees that Chart-MD, LLC shall have no obligation to provide Subscriber access to the Internet. Subscriber shall be solely responsible for acquiring, purchasing, installing, configuring, maintaining, updating, and implementing the computer system for accessing the Internet, including (without limitation) computer software, Internet access software, computer hardware and telecommunication equipment and all fees, costs, and expenses in connection therewith.
Section 3.05 – Service Level: The Subscriber Technology shall be made available to Subscriber twenty four (24) hours a day, seven (7) days a week, less downtime that is attributable to: (i) scheduled network, hardware, or service maintenance; (ii) the acts or omissions of Subscriber or Subscriber’s employees, agents, contractors, or vendors gaining access to the Software by means of Subscriber’s Password; or (iii) a failure of the Internet and/or public switched telephone network (collectively, the “Excusable Downtime”).
Section 3.06 – Conversion: Subscriber hereby acknowledges that Chart-MD, LLC may remove, migrate, or convert (as the case may be) the Subscriber Content and Subscriber Technology from the Software from time to time, for the purposes of maintenance, installation, updates, replacements, backup, or modifications to the Software or Services.
ARTICLE IV: TERM OF AGREEMENT