By becoming a registered user of DataMotion HISP Services (“Service” or “Services”) You agree to the following Terms of Service. Please read them carefully.
NOTE: The below Terms of Service are primarily intended for You as an individual user of DataMotion’s HISP Services otherwise not covered by an entity-level agreement with DataMotion. If you are covered by a separate entity-level HISP Services Agreement, then the terms of that agreement shall prevail. However, You will need to go through the process of clicking “agree” to the below Click-wrap Terms of Service in order to activate your services.
SPECIAL NOTE: IF YOU ARE ENROLLED BY AN AUTHORIZED RESELLER OR AN EMR/EHR VENDOR, TERMS OF THE RESPECTIVE AUTHORIZED RESELLER’S HISP SERVICES AGREEMENT SHALL GOVERN IN CASE OF ANY CONFLICT BETWEEN THIS TOS AND THE AUTHORIZED RESELLER’S HISP SERVICES AGREEMENT.
For any further information, please contact your Authorized Reseller or EMR/EHR vendor.
ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE
The DataMotion HISP service (the "Service" or “Services), owned and operated by DataMotion, Inc. ("DataMotion"), is provided to You ("User" or "You") under the terms and conditions of this DataMotion HISP Terms of Service and any amendments thereto and any operating rules or policies (the "TOS") that may be published from time to time by DataMotion. The TOS comprises the entire agreement between You and DataMotion and supersedes any prior agreements pertaining to the subject matter contained herein. BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU ARE AGREEING TO BE BOUND BY THE TOS.
DESCRIPTION OF SERVICE
DataMotion is providing You with the capability to send and receive electronic mail and attachments via the World Wide Web on DataMotion’s system (or providing the ability for systems to communicate and send files to one another). User must: (a) provide for Your own access to the World Wide Web and pay any service fees associated with such access, and (b) provide all equipment necessary for You to make such connection to the World Wide Web, including a computer and modem.
USER'S REGISTRATION OBLIGATIONS
In consideration for the use of the Service, You agree to:
This information about You shall be referred to as "Registration Data." If any information provided by You is untrue, inaccurate, not current or incomplete, DataMotion has the right to terminate Your account and refuse User any and all current or future use of the Service.
- provide true, accurate, current and complete information about You as prompted by the Registration Form, and
- maintain and update this information to keep it true, accurate, current and complete.
DataMotion will create a Direct Address for You when on-boarded based on Your required information in accordance with DirectTrust rules and guidelines (“Directory Information”). Each Direct Address created by DataMotion will become part of its Healthcare Provider Directory (“HPD”) and made available to all other Authorized Users of HISP. All Direct Addresses in the HPD will be accessible to any user with a Direct Address in DataMotion HISP or from any third party HISP using a compatible search function and in accordance with Direct Protocol. You expressly consent without limitation to include your Direct Address in the HPD and to share the Directory Information with HPD of third party HISPs in accordance with guidelines provided by DirectTrust.
USE OF REGISTRATION DATA
DataMotion or its designee shall not disclose Registration Data to third parties except as authorized by You or as required by law or legal process, or as set forth in Paragraph VII below.
MODIFICATIONS TO TERMS OF SERVICE
DataMotion reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this TOS and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions will be effective immediately and incorporated into this TOS. Your continued use of the DataMotion Service will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this TOS by this reference.
MODIFICATIONS TO SERVICE
DataMotion reserves the right to modify or discontinue, temporarily or permanently, the Service with 30-day notice to You. You agree that DataMotion shall not be liable to You or any third party for any modification or discontinuance of the Service, or for subsequent loss of any email messages in the event of any modification or discontinuance of the Service.
DATAMOTION BUSINESS ASSOCIATE AGREEMENT (“BAA”)
Use of the Services by You as an Authorized User is subject to DataMotion’s Business Associate Agreement (BAA) available at http://directbeta.datamotion.com/register/baa.aspx which is incorporated herewith by reference and expressly made part of this TOS and shall be binding.
USER ACCOUNT, PASSWORD AND SECURITY; UNAUTHORIZED USE
You will receive a password and account designation upon completing the registration process. You are responsible for maintaining the confidentiality of the password and account, and fully responsible for all activities which occur under your account. If You become aware of or have reasons to believe that any third party has access to your password without authorization, You agree to notify DataMotion immediately at firstname.lastname@example.org of any actual or suspected unauthorized use of your account or any other breach of security. Your DataMotion account is associated with a single registered and authorized email address.
You agree to abide by all applicable local, state, national, and international laws and regulations in use of the Service, and agree not to interfere with the use and enjoyment of the Service by other Users. You agree to be solely responsible for the contents of your transmissions through the Service.
You agree (a) not to use the Service for illegal purposes; (b) not to interfere with or disrupt the Service or servers or networks connected to the Service; (c) to comply with all requirements, procedures, policies and regulations of networks connected to the Service; and (d) to comply with all applicable laws regarding the transmission of technical data exported from the United States.
You agree not to transmit through the Service any unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind. You agree not to transmit any material that violates the rights of another, including but not limited to the intellectual property rights of another. You agree not to transmit any material that violates any applicable local, state, national, or international law or regulation. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Service. You agree not to transmit "junk mail", "spam", "chain letters", or unsolicited mass distribution of email.
User agrees to indemnify and hold DataMotion, and its parents, subsidiaries, affiliates, officers, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Service in violation of the TOS, or your violation of any rights of another User.
NO RESALE OR OTHER COMMERCIAL DISTRIBUTION OF THE SERVICE
You agree not to resell or otherwise distribute commercially the Service, including its use of or access to the Service.
DataMotion may establish default criteria that govern the size and retention period of message storage for
your account. DataMotion assumes no responsibility for any deletion or failure to store email messages (by You, DataMotion or any third party).
You agree that DataMotion may terminate your password, account or use of the Service, after giving You a 30-day notice to cure, if DataMotion believes (a) that You have violated or acted inconsistently with the letter or spirit of the TOS, or (b) that You have violated the rights of DataMotion or other Users.
The Service may provide, or Users may include in email, links to other Web sites or resources. You acknowledge and agree that DataMotion is not responsible for the availability of such external sites or resources, and that DataMotion does not endorse such external sites and that DataMotion is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You agree that DataMotion shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such external sites or resources.
DATAMOTION'S PROPRIETARY RIGHTS
You acknowledge and agree that content, including but not limited to text, graphics, file attachments or information presented to You through the Service is protected by copyrights, trademarks, service marks, patents, and/or other proprietary rights and laws of the original lawful owner. You acknowledge and agree that (i) You are permitted to use this material and information only as expressly authorized, and (ii) Your actions to copy, reproduce, transmit, distribute, or create derivative works of such content or information may be subject to authorization by the owner(s) of such materials, as applicable.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
DATAMOTION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
DATAMOTION MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES DATAMOTION MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OR FROM THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. DATAMOTION MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DATAMOTION OR FROM THE SERVICE SHALL CREATE ANY WARRANTY BY DATAMOTION WHATSOEVER.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
YOU AGREE THAT DATAMOTION SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR REGISTRATION INFORMATION, TRANSMISSIONS OR OTHER DATA, INCLUDING BUT NOT LIMITED TO: DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF DATAMOTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU FURTHER AGREE THAT DATAMOTION SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER OR NOT SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Any notice to You under this TOS shall be made via either email or regular mail, at the sole discretion of DataMotion. DataMotion may also provide notices of changes to the TOS or other matters by displaying notices to Users generally on the Service.
The TOS and the relationship between You and DataMotion shall be governed by the laws of the State of New Jersey without regard to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located within the state of New Jersey.
The failure of DataMotion to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or to the TOS must be filed within one (1) year from the date such claim or cause of action is deemed to arise, or shall be forever barred.
The section titles in the TOS are for convenience only and have no legal or contractual effect. These TOS (with any applicable registration forms), as such may be amended from time to time, constitute the entire agreement between You and DataMotion.