Terms of Service
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICES DESCRIBED BELOW, CLICKING A BOX INDICATING ACCEPTANCE, OR EXECUTING AN ORDER FORM OR SUBSCRIPTION AGREEMENT REFERENCING THESE TERMS OF SERVICE, CUSTOMER IS AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT SUBSCRIBE TO, ACCESS, OR USE THE SERVICE.
1) GUARDIAN MEDICAL DIRECTION SOFTWARE SERVICES
These Terms of Service provide the Customer with access and use of Guardian Medical Direction’s services, as specified on the applicable order form or subscription agreement between the parties. These Terms of Service, along with the applicable order form or subscription agreement, are referred to herein collectively as the Customer Agreement. Customer may purchase services across Guardian Medical Direction’s solutions offerings, which are collectively referred to as the Service.
Support. Guardian Medical Direction will provide customer support for the Service as further detailed in the Support Policy.
Access by Employees and Contractors.
Customer may not make the Service available to anyone other than its employees and contractors and will do so solely to access the Service for the benefit of Customer in compliance with the terms of these Terms of Service.
Customer is responsible for the compliance with these Terms of Service by its employees and contractors.
Delay or Suspension of Work
If Customer acts or failure to act causes Guardian Medical Direction to delay or suspend performance of Services, Customer will remain responsible for all payments accrued during the period of delay.
Customer may not:
sell, resell, rent, or lease the Service, or use the Service beyond its internal operations;
use the Service to store or transmit unsolicited marketing emails or infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy rights);
use service to access, or to attempt to access without authority, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Company’s or a third party’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in disruption of service or the corruption or loss of data.
share access or distribute user credentials;
interfere with or disrupt the integrity or performance of the Service;
attempt to gain unauthorized access to the Service or its related systems or networks;
modify, copy the Service, or create derivative works based on the Service or any part, feature, function, or user interface;
except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Service or remove or modify any proprietary marking or restrictive legends in the Service;
use the Service in violation of any law; or
use the Service for other than health-related services and information
access the Service to build a competitive service or offering.
during the Term of this Agreement and for one (1) year following the expiration or termination date of the Agreement, Customer agrees not to directly or indirectly solicit or induce any Guardian Medical Direction employee or contractor that has interacted with Customer or has been involved, directly or indirectly, in the performance, review and/or acceptance of the Services, to consider or accept employment with Customer without the prior express written permission of Guardian Medical Direction. In the event this restriction is violated, Customer may be held liable for liquidated damages to the maximum extent of the law, but not less than equivalent of 12 months of subscription fees.
All data, information, images, documentation, and files entered or uploaded by Customer to the Service remains the property of Customer, as between Guardian Medical Direction and Customer (Customer Information), subject to the other terms of these Terms of Service.
License to Use Customer Information
Customer grants Guardian Medical Direction a non-exclusive, royalty-free, license to modify, store, transmit, and otherwise use the Customer Information for purposes of Guardian Medical Direction performing under these Terms of Service.
Responsibility for Customer Information
Customer is solely responsible for Customer Information including, must use commercially reasonable efforts to prevent unauthorized access to the Service, must notify Guardian Medical Direction promptly of any known unauthorized access, and may use the Service only in accordance with its intended purposes and applicable law.
Accuracy of Customer Information
Customer represents and warrants to Guardian Medical Direction that all Customer Information, and any other material provided under Customer’s account, by Customer or on its behalf, is true, correct, and accurate. If Customer learns that any Customer Information provided to Guardian Medical Direction as part of the Service is not true, correct or accurate, Customer must immediately notify Guardian Medical Direction by phone and in writing of this fact, and provide the true, correct and accurate information to Guardian Medical Direction. Guardian Medical Direction relies on Customer representations regarding the truth, accuracy and compliance with laws concerning Customer Information. Guardian Medical Direction IS NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY CUSTOMER’S FAILURE TO COMPLY WITH THIS PARAGRAPH, IRRESPECTIVE OF ANY ACT OR OMISSION ON THE PART OF GUARDIAN MEDICAL DIRECTION.
Guardian Medical Direction
shall provide the client with Medical Direction and Physician Oversight by connecting one or more licensed physicians to the client’s account.
will be responsible for ensuring that the Medical Directors are licensed, credentialed and have insurance coverage.
will be responsible for paying Medical Directors and Collaborating Physicians for their work and keeping track of the completion of all chart reviews, site visits, and other duties required of the Physicians on behalf of the Customer.
ensure the prompt response of all Physicians to Customer requests.
does not employ our Medical Directors or Physician Collaborators and may, at its option, subcontract work but Guardian Medical Direction’s use of subcontractors shall not affect its responsibilities under this section.
is not responsible for the medical duties, patient care, or compliance with medicolegal laws and statutes of its Customers.
shall maintain all records required by state and federal jurisdiction and pertaining to their medical practice and operations.
shall provide appropriate documents as needed for compliance with all state and federal laws to Guardian Medical Direction.
shall notify Guardian Medical Direction of any changes to their operations, medical direction needs, or ownership pertaining to the operation of the Customer business
shall carry their own malpractice insurance with limits no less than $1M/$3M.
Guardian Medical Direction may provide additional telehealth services, including Good Faith Exams, where authorized. The access and use of the Telehealth Service is governed by a separate Terms Agreement, that may be modified over time.
Guardian Medical Direction is not a medical practice.
Customer agrees that, in an effort to maintain compliance, Guardian Medical Direction may require a separate Managed Service Agreement to be signed with our Practice Entities to maintain Corporate Practice of Medicine compliance.
This agreement will be executed separately from the service of Medical Direction provided in this agreement and does not impact the performance or responsibilities of either the customer or Guardian Medical Direction.
Exclusion of Non-Registered Users
Only users who have successfully completed the registration process and are issued valid user credentials by Guardian or its affiliates are eligible for the medical oversight services. Non-registered users, including individuals without active accounts on our platform, will not be covered by the medical oversight services.
Guardian Medical Direction, through its sister and affiliate companies, may offer design and development of a hosted provider website, and provide cloud-based tools and services (for example, online booking tool, call tracking, reputation management, analytics dashboard, and general online local marketing services) (collectively, the Engagement Software).
The Service includes any required, usual, appropriate, or acceptable methods to perform activities related to the Service, for example:
conducting analytics and other product improvement activities;
carrying out the Service or the business of which the Service is a part;
carrying out any benefits, rights, and obligations related to the Service;
maintaining records relating to the Service; and
complying with any legal or self-regulatory obligations related to the Service.
Customer may upload or submit content, files, and information to the Service for use with Engagement Software (Content). Customer retains copyright and any other proprietary rights that Customer may hold in the Content that Customer provides to Guardian Medical Direction; for clarity, all other elements of the Engagement Software and Content provided by Guardian Medical Direction, apart from any Content provided by Customer, are owned solely by Guardian Medical Direction, and will not be retained by Customer upon suspension, expiration or termination of this agreement.
Customer is solely responsible for any Content that Customer provides or any custom tracking technology used on a Provider Website, and for the consequences of posting or publishing such Content or tracking technology.
Customer hereby grants Guardian Medical Direction a non-exclusive irrevocable, perpetual, royalty-free license to display, store, distribute, share, modify, and otherwise use such Content for purposes providing the Service under this agreement (including, without limitation, a license to syndicate the Content to third party publisher sites as required to provide Customer the applicable Service (e.g., GuardianEngage)).
Customer represents and warrants to Guardian Medical Direction that:
Any Content submitted to the Service does not violate any copyright, trade secret, privacy or other third party right;
It will not submit any Content that is untrue, defamatory, harmful to any person, or violates HIPAA Privacy Rules, state or federal laws on patient privacy; and
All patient testimonials submitted by Customer are accurate, have the patient’s consent, and comply with ethical guidelines of professional medical associations as well as state and local medical and private practice boards and governing bodies.
Where applicable, Guardian Medical Direction will make the dashboard element of the Engagement Platform available to Customer in accordance with these Terms of Service and any other Guardian Medical Direction rules and policies then in effect.
Domain Name Upon termination
Customer will have the following rights to the Provider Website domain name upon termination or expiration of the Customer Agreement:
If the domain name was purchased and registered by Guardian Medical Direction, then Guardian Medical Direction will take reasonable measures to assign its rights in the domain name to Customer; or
If rights to the domain name were provided by Customer, then Customer will retain such rights to the domain name.
Reviews & Opinions
Guardian Medical Direction does not endorse, validate as accurate, or necessarily agree with any of the reviews, links, and user-generated content from users or Customers on the Service.
Guardian Medical Direction reserves the right to refuse to publish any patient review provided by Customer.
The Service may attempt to send automated or human-based alerts when reviews are provided on third party websites, but Guardian Medical Direction does not guarantee the accuracy, completeness, or timeliness of such alerts
3) PAYMENT TERMS
Customer must pay all fees as specified on the order and related services as incurred as specified on the Pricing Policy page.
Unless otherwise stated, invoiced charges are due upon receipt.
Customer is responsible for providing complete and accurate billing and contact information to Guardian Medical Direction and notifying Guardian Medical Direction of any changes to such information.
Credit Card and ACH
Customer must pay all fees (in US dollars) with a credit card or via ACH upon receipt of an invoice from Guardian Medical Direction.
If the credit card or ACH is not valid or the payment is not otherwise made, Customer must pay the amount owed upon receipt of an invoice.
Customer hereby authorizes Guardian Medical Direction to charge such credit card or withdraw from Customer’s bank account via ACH for all purchased Services and related services, and any renewals.
Except for certain state sales taxes as noted on Customer invoices, Guardian Medical Direction’s fees do not include any taxes, levies, or other similar governmental assessments (Taxes).
Except as otherwise stated herein, Customer is responsible for the payment of all Taxes associated with its purchases under the Customer Agreement.
Guardian Medical Direction is solely responsible for taxes assessable against Guardian Medical Direction based on its income, property, and employees.
Suspension of Service for Non- Payment
Guardian Medical Direction may suspend or terminate Customer’s access to the Service, or both, if Customer has not paid amounts owed to Guardian Medical Direction when due.
In advance of any suspension or termination, Guardian Medical Direction will make commercially reasonable efforts to send a minimum of five (5) –days advance electronic notice of payment default to the email address in Customer’s account within the Service.
Guardian Medical Direction reserves the right to assess a reactivation fee, as detailed in the Pricing Policy to Customers whose accounts are suspended based on late payments received more than fifteen (15) days following the payment due date.
For Customers with month-to-month agreements, all fees may be changed with sixty (60) days’ notice to Customer.
For all Customers, Guardian Medical Direction reserves the right to modify its pricing to meet economic and fair market value pricing, upon thirty (30) days’ notice to the Customer.
For all Customers, Guardian Medical Direction may increase fees to regulatory, compliance, and other cost increases imposed by changes to applicable federal and state rules. Guardian Medical Direction will automatically apply the rate increase to all services impacted by the change with thirty (30) days’ notice to the Customer.
Timing of Payment
Fees, as identified on the order form or subscription agreement, are due as indicated. Guardian Medical Direction will have the right to charge the Customer’s card or debit from Customer’s account through ACH for fees in accordance with the agreement. By providing Guardian Medical Direction with payment information, Customer agrees that Guardian Medical Direction is authorized, to the extent permitted by applicable law, to immediately charge such payment method for all fees and charges due and payable to Guardian Medical Direction hereunder and that, except as required by applicable law, no additional notice or consent is required. Customer agrees to immediately notify Guardian Medical Direction of any change in the payment information used for payment hereunder. Customer understands and acknowledges that all amounts owed must be paid in advance and that if timely payment is not received, in addition to being in breach of Customer’s contractual obligations, the Service may be paused or terminated. Any amounts not paid by the Customer when due may bear interest at the rate of 1.5% per month (or the highest rate permitted by law). Customer agrees to pay all costs of collection, including attorney’s fees and costs and all other legal and collection expenses incurred by Guardian Medical Direction in connection with its enforcement of its rights under the agreement.
4) REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
Guardian Medical Direction will make commercially reasonable efforts to maintain uptime of 99% excluding any scheduled downtime, force majeure issues and third-party services (see Support Policy for additional details).
Mutual Representations and Warranties
Each party represents and warrants to the other that:
the Customer Agreement has been duly entered into and constitutes a valid and binding agreement enforceable against such party in accordance with its terms;
no authorization or approval from any third party is required in connection with such party’s entering into or performance of the Customer Agreement; and
the entering into and performance of the Customer Agreement does not and will not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
GUARDIAN MEDICAL DIRECTION DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WHILE GUARDIAN MEDICAL DIRECTION TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, GUARDIAN MEDICAL DIRECTION DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. GUARDIAN MEDICAL DIRECTION DISCLAIMS ANY WARRANTY REGARDING ANY PERCENTAGE OF COLLECTION OF CLAIMS FOR CUSTOMER.
FROM TIME TO TIME, CUSTOMER MAY REQUEST THE ADDITION OF CERTAIN CODE AND/OR FUNCTIONALITIES TO BE ADDED TO CUSTOMER’S WEBSITE OR OTHER PLATFORM. GUARDIAN MEDICAL DIRECTION SHALL NOT BE RESPONSIBLE FOR ENSURING THAT THE REQUESTED CODE AND/OR FUNCTIONALITIES COMPLY(IES) WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS PERTAINING TO CUSTOMER’S BUSINESS. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT CUSTOMER ALONE SHALL BE RESPONSIBLE FOR ENSURING THAT CUSTOMER’S WEBSITE AND SERVICE OFFERINGS, EVEN IF SUPPORTED BY GUARDIAN MEDICAL DIRECTION, COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
No Direct Patient Care Provided by Guardian Medical Direction
Guardian Medical Direction does not provide direct patient care, provide medical or diagnostic services, or prescribe medication.
Use of the Service is not a substitute for the autonomous and professional judgment of a licensed health care providers in diagnosing and treating patients.
Customer agrees that it is solely responsible for verifying the accuracy of patient information (including, without limitation, obtaining all applicable patients’ medical and medication history and allergies), obtaining patient’s consent, and for all of its decisions or actions with respect to the medical care, treatment, and well-being of its patients, including without limitation, all of Customer’s acts or omissions.
Any use or reliance by Customer upon the Service will not diminish that responsibility.
Customer assumes all risks associated with Customer’s clinical treatment of patients.
GUARDIAN MEDICAL DIRECTION SHALL NOT ASSUME ANY LIABILITY OR RESPONSIBILITY FOR DAMAGE OR INJURY (INCLUDING DEATH) TO CUSTOMER, A PATIENT, OTHER PERSONS, OR TANGIBLE PROPERTY ARISING FROM ANY USE OF THE SERVICE.
Corporate Practice of Medicine Acknowledgement
The Customer acknowledges that all states have different laws and regulations regarding the corporate practice of medicine.
Though Guardian Medical Direction does its own legal due diligence, interpretation of current laws and regulations are not always clear.
The Customer acknowledges and attests to the fact that they have established their business in a legally appropriate and compliant manner and will not hold Guardian Medical Direction liable for any issues arising from the inappropriate or non-compliant establishment of their business.
As part of the Service, Guardian Medical Direction may perform or assist in performing a function or activity on Customer’s behalf that involves the use and disclosure of Protected Health Information (as defined in 45 C.F.R. 164.501; PHI).
The parties may use or disclose such PHI as required by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Standards for Privacy of Individually Identifiable Health Information (Privacy Rule) and the Standards for Security of Electronic Protected Health Information (Security Rule) promulgated thereunder, and the Health Information Technology for Economic and Clinical Health Act (Division A, Title XIII and Division B, Title IV, of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) (HITECH Act).
Capitalized terms used but not otherwise defined have the same meaning given to such terms in HIPAA, the HITECH Act, or any implementing regulations promulgated thereunder, including but not limited to the Privacy Rule and the Security Rule.
In connection with and by agreeing to the Customer Agreement, you and Guardian Medical Direction agree to be bound by the terms of a Business Associate Agreement which is incorporated herein by reference. You (the “Covered Entity,” as referred to in the Business Associate Agreement) hereby agree that you have read and agree to be bound by the terms of the Business Associate Agreement.
CCPA means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199.95), the CCPA Regulations (Cal. Code Regs. tit. 11, §§ 7000 to 7102), and any related regulations or guidance provided by the California Attorney General. For the purposes of this Section, terms defined in the CCPA, including personal information and business purposes, carry the same meaning.
This Section applies solely to the extent that:
Guardian Medical Direction’s provision of the Service is not exempt from the CCPA (defined below) under California Civil Code sections 1798.145(c)(1)(A) and (c)(1)(B) pertaining to medical information, PHI, providers of health care, and covered entities;
Customer is a “business” within the meaning of the CCPA; and
Guardian Medical Direction is processing the personal information of California residents.
Guardian Medical Direction is a service provider.
Guardian Medical Direction will not collect, retain, use, disclose or otherwise process Customer Personal Information for any purpose other than for performing the Service, or as otherwise permitted by the CCPA.
Guardian Medical Direction will limit Customer Personal Information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to provide the Service or to achieve another compatible operational purpose.
Guardian Medical Direction will not collect, use, retain, disclose, sell, or otherwise make Customer Personal Information available for Guardian Medical Direction’s own commercial purposes or in a way that does not comply with the CCPA. Guardian Medical Direction may, however, create and derive from its provision of the Service anonymized and/or aggregated data that does not identify Customer or any consumer or household, and use, publicize, or share with third parties such data to improve Guardian Medical Direction’s products and services and for Guardian Medical Direction’s other lawful business purposes.
Notwithstanding the foregoing, with Customer’s consent, Guardian Medical Direction may share Customer contact information with certain partners we may work with.
Guardian Medical Direction must promptly comply with any Customer request or instruction requiring Guardian Medical Direction to provide, amend, transfer, or delete Customer Personal Information, or to stop, mitigate, or remedy any unauthorized processing unless otherwise permitted by the CCPA.
Notwithstanding anything in the agreement entered, Customer and Guardian Medical Direction acknowledge and agree that Guardian Medical Direction’s access to Customer Personal Information is not part of the consideration exchanged by the parties in respect of the Agreement.
Guardian Medical Direction certifies that it understands its obligations under this paragraph and must comply with them.
If a law requires Guardian Medical Direction to disclose Customer Personal Information for a purpose unrelated to the Service, Guardian Medical Direction must first inform Customer of the legal requirement and give Customer an opportunity to object or challenge the requirement, unless the law prohibits such notice.
Guardian Medical Direction may use a subcontractor to provide or support the provision of the Service. Any subcontractor used must qualify as a service provider under the CCPA and Guardian Medical Direction will not make any disclosures to the subcontractor that the CCPA would treat as a sale.
Customer is solely responsible for:
identifying whether the CCPA applies to Customer;
providing any notices of your privacy practices that may be required by CCPA; and
identifying and responding to verifiable consumer requests to exercise CCPA rights to access, delete, or opt out of the sale of personal information (CCPA Requests), including for verifying the identity of consumers submitting CCPA Requests and for evaluating the scope and legality of CCPA Requests.
Guardian Medical Direction will provide reasonable assistance to Customer in responding to such CCPA Requests, which may include assistance by way of providing self-service functionality.
Guardian Medical Direction will treat any CCPA Requests that Customer submits to Guardian Medical Direction as presumptively valid under the CCPA.
With respect to CCPA Requests for which Customer requires Guardian Medical Direction to provide assistance, Customer must:
notify Guardian Medical Direction within five (5) days of its receipt of the CCPA Request by emailing [email protected]; and
provide Guardian Medical Direction with the consumer’s email address or such other information that would permit Guardian Medical Direction to honor the request.
Customer is solely responsible and liable for responding to the individual’s CCPA Request, including without limitation the content and timing of the response, in compliance with the CCPA.
In response to a CCPA Request for access to Customer Personal Information that Customer submits to Guardian Medical Direction, within ten (10) business days of Guardian Medical Direction’s receipt of such request from Customer, Guardian Medical Direction will provide Customer with a file that contains the Customer Personal Information that Guardian Medical Direction maintains about the individual via a secure method of transfer.
Guardian Medical Direction may withhold from such file any Customer Personal Information that the CCPA does not require to be provided in response to a CCPA Request.
In response to a CCPA Request for the deletion of Customer Personal Information that Customer submits to Guardian Medical Direction, except as otherwise required by applicable law or permitted by the CCPA, within ten (10) business days of Guardian Medical Direction’s receipt of such request from Customer, Guardian Medical Direction will delete the Customer Personal Information, to the extent Guardian Medical Direction maintains such Customer Personal Information about the individual.
Guardian Medical Direction may delete such Customer Personal Information by anonymizing and/or aggregating the information such that the information does not identify, and is not reasonably capable of identifying, the individual.
Customer may not direct or otherwise cause Guardian Medical Direction to share any Customer Personal Information with any third party in a manner that may constitute a “sale” as such term is defined in the CCPA.
For purposes of this Section, “Customer Personal Information” means any “personal information” contained within the data that Guardian Medical Direction “processes” (as defined in the CCPA) in connection with performing the Service.
This Section concerns compliance with the Telephone Consumer Protection Act of 1991, located at 47 U.S.C. §§ 227 et seq., including the implementing regulations therefor located at 47 C.F.R. 64.1200 et seq. (TCPA) and the Telemarketing Sales Rule authorized by the Telemarketing and Consumer Fraud and Abuse Prevention Act, located at 15 U.S.C. §§ 6101-6108 (TSR) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, located at 15 U.S.C §§ 7701-7713 (CAN SPAM Act).
As between Customer and Guardian Medical Direction, Customer must comply and be solely responsible for complying with all laws governing any messages sent or received in connection with its access or use the Service, including without limitation, the TCPA, TSR, and CAN SPAM Act.
Customer is responsible for, without limitation, obtaining any legally required consents from all third parties (including its patients or customers) to send and receive any text message and/or emails using the Service and honoring any requests revoking such consent or otherwise “opting-out” of receiving any such messages and/or emails.
Customer is solely liable for, and must indemnify, defend and hold harmless Guardian Medical Direction from and against any and all damages, liabilities, judgments, fees, fines, costs and expenses (including reasonable attorneys’ fees) incurred by Guardian Medical Direction arising from any claims, demands or legal actions made against Guardian Medical Direction resulting from Customer’s failure to comply with this Section.
At Guardian Medical Direction, we strive to create an environment where people are equally valued and where we and our Customers work together to do our part to help end discrimination.
As a result, Guardian Medical Direction has adopted an anti-discrimination policy that includes our Customers.
Guardian Medical Direction will not tolerate Customers who engage in extreme examples of blatant discrimination or verbal aggression in their interactions with Guardian Medical Direction employees or publicly on social channels.
This includes discrimination against or verbal aggression towards any race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person.
Customer agrees and understands that violation of this policy by Customer qualifies as a Material Breach of the Customer Agreement pursuant to Section 8 (TERM, TERMINATION, AND RETURN OF DATA).
Definition of Confidential Information
Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information).
Guardian Medical Direction’s Confidential Information includes, without limitation, the non-public portions of the Service and Customer’s Confidential Information includes, without limitation, Customer Information.
Protection of Confidential Information
Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of the Customer Agreement.
Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees, contractors, and clients (as the case may be) who need such access for purposes consistent with the Customer Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of the Customer Agreement.
Recipient may disclose Confidential Information (i) to the extent required by law or legal process; (ii) to its legal or financial advisors, provided that such advisors are bound by a duty of confidentiality that includes use and disclosure restrictions; and (iii) as required under applicable securities regulations.Each party may disclose the terms and conditions of the Customer Agreement on a confidential basis to current and prospective investors, acquirers, lenders, and their respective legal and financial advisors in connection with due diligence activities.
Confidential Information excludes information that (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information.
6) PROPRIETARY RIGHTS
Reservation of Rights by Guardian Medical Direction
The software, workflow processes, user interface, designs, know-how, and other technologies provided by Guardian Medical Direction as part of the Service, and all updates and enhancements, are the proprietary property of Guardian Medical Direction and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with Guardian Medical Direction.
Guardian Medical Direction reserves all rights unless expressly granted in the Customer Agreement.
Aggregation Services and De-identified Data
Guardian Medical Direction may use PHI to provide Customer with data aggregation services (as that term is defined by HIPAA) and to create de-identified data in accordance with 45 CFR 164.514(a)-(c).
Guardian Medical Direction solely owns all right, title, and interest, in any de-identified data it creates from PHI.
Guardian Medical Direction and its affiliates may use and disclose, during and after the Customer Agreement, all aggregate, anonymized information and de-identified data for purposes of enhancing the Service, technical support and other business purposes, all in compliance with the HIPAA Privacy Standards, including without limitation the limited data set and de-identification of information regulations.
7) LIMITS ON LIABILITY
NO INDIRECT DAMAGE
GUARDIAN MEDICAL DIRECTION WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, COST OF COVER, LOSS OF DATA, INTERRUPTION OF BUSINESS OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
GUARDIAN MEDICAL DIRECTION’S TOTAL LIABILITY FOR ALL DAMAGES ARISING UNDER OR RELATED TO THE CUSTOMER AGREEMENT (IN CONTRACT, TORT, OR OTHERWISE) WILL NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
ANY CLAIM BY CUSTOMER AGAINST GUARDIAN MEDICAL DIRECTION MUST BE BROUGHT WITHIN SIX (6) MONTHS OF THE EVENT WHICH GAVE RISE TO THE CLAIM, AND IF IT IS NOT BROUGHT WITHIN SUCH TIME PERIOD THEN SUCH CLAIM IS EXPRESSLY WAIVED BY CUSTOMER.
8) TERM, TERMINATION, AND RETURN OF DATA
The applicable Services will continue for the duration specified in the applicable Customer Agreement (Initial Term). Following the end date of the Initial Term, the Customer Agreement will be automatically extended for additional consecutive terms of equal duration to the Initial Term (Renewal Term) unless either party provides notice of non-renewal in accordance with the Section entitled “Notice of Non-Renewal” below. The Initial Term and any subsequent Renewal Term(s) may be collectively referred to as the “Term”.
These Terms of Service continue in effect until all order forms and/or subscription agreements and all Services are terminated.
Notice of Non-Renewal
To prevent renewal of a Customer Agreement, either party must give written notice of non-renewal and this written notice must be received prior to the end of the current term of the Customer Agreement then in effect. If Customer decides not to renew, Customer must send the notice of non-renewal by contacting the assigned Account Manager directly or via the communications methods in Guardian Medical Direction’s Support Policy. Any notice received after the term ended will result in auto-renewal of the Customer Agreement for an additional Renewal Term.
Customers with Medical Direction Core Service, GuarianMD Connect Telehealth Service, and/or GuardianEngage services must provide notice in writing at least thirty (30) days prior to removing a license or downgrading a service. Notice should be made to the assigned Account Manager directly or via the communications methods in Guardian Medical Direction’s Support Policy.
Termination for Material Breach
Either party may terminate the Customer Agreement if the other party material breaches any term of the Customer Agreement and does not cure the breach within thirty (30) days of receipt of written or electronic notice of breach.
No Early Termination; No Refunds
Absent termination pursuant to the Sections entitled “Notice of Non-Renewal” and “Termination for Material Breach”, Customer cannot cancel the current term of the Customer Agreement. Guardian Medical Direction does not provide refunds if Customer decides to stop using the Service before the end of the Term.
Credits are applicable only toward future fees for use of the Service and are not convertible into cash or any type of refund.
Return of Data
As Customer has access to the Customer Information during the term of an order, Guardian Medical Direction has no obligation to provide Customer Information to Customer upon termination of the Customer Agreement.
Notwithstanding the foregoing, Guardian Medical Direction retains Customer Information for sixty (60) days from such termination and Guardian Medical Direction may provide Customer access to such information upon Customer’s request.
If Customer’s account is suspended for any reason, Guardian Medical Direction will provide offline access to Customer Information via the communications methods detailed in the Support Policy.
Customer Actions upon Termination
Upon termination, Customer must pay any unpaid fees and destroy all Guardian Medical Direction property in Customer’s possession.
Customer, upon Guardian Medical Direction’s request, will confirm in writing or electronically that it has complied with this requirement.
Suspension or Termination of Service for Violation of Law or the Agreement
Guardian Medical Direction may immediately suspend or terminate the Service and remove applicable Customer Information if it in good faith believes that, as part of using the Service, Customer may have violated any applicable law or any term of the Customer Agreement.
Guardian Medical Direction may use reasonable efforts to try to contact Customer in advance, but it is not required to do so.
To the maximum extent allowed by law, Customer must indemnify, defend (at Guardian Medical Direction’s option), and hold harmless Guardian Medical Direction, including its officers, directors, employees, agents, successors, and assigns against all third-party claims (including, without limitation, by governmental agencies), demands, damages, costs, penalties, fines, and expenses (including reasonable attorneys’ fees and costs) arising out of or related to:
the use of the Service by Customer;
Customer’s breach of any term in the Customer Agreement;
any unauthorized use, access, or distribution of the Service by Customer; or
violation of any individual’s privacy rights related to information submitted under Customer’s account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account or by Customer.
Guardian Medical Direction Indemnity
Guardian Medical Direction shall indemnify, defend, and hold harmless Customer from and against any and all losses incurred by Customer resulting from any action by a third party (other than an a person or entity that directly or indirectly controls, is controlled by, or is under common control with Customer) against Customer alleging use of the Service in accordance with this Customer Agreement infringes or misappropriates such third party’s US Intellectual Property Rights.
The foregoing obligation does not apply to the extent that the alleged infringement arises from:
Customer Information or Customer provided Content;
access to or use of the Service in combination with any hardware, system, software, network, or other materials or service not provided by Guardian Medical Direction or specified for Customer’s use, unless otherwise expressly permitted by Guardian Medical Direction in writing;
modification of the Service other than:
by or on behalf of Guardian Medical Direction; or
with Guardian Medical Direction’s written approval in accordance with Guardian Medical Direction’s written specification;
failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Guardian Medical Direction.
10) DISPUTE RESOLUTION
The Customer Agreement and any Dispute (as defined below) will be governed exclusively by the laws of the State of Michigan, without regard to its conflicts of laws principles. The parties hereby submit to and consent irrevocably to the jurisdiction of such courts for these purposes.
The parties hereby irrevocably waive any and all right to trial by jury in any legal proceeding arising out of any Dispute.
General Mediation Process
The parties shall submit any and all disputes, claims, or controversies arising out of or relating to the Customer Agreement including any conduct related to or arising out of the Customer Agreement following termination hereof (each a “Dispute”) as follows:
the parties will submit the dispute to non-binding mediation in Oakland County under the mediation rules of the American Arbitration Association (AAA); and
if no settlement is reached within sixty (60) days of the start of mediation, either party may seek legal redress in a forum of competent jurisdiction.
Either party may commence mediation by providing to AAA and the other party a written request for mediation, which must set forth the subject of the Dispute, the relief requested, and the factual and legal bases for such relief. The parties shall cooperate with AAA and with one another in selecting a mediator from the AAA panel of neutrals and in scheduling the mediation proceedings. The parties shall participate in the mediation in good faith and equally share the costs of the mediation.
If the Dispute is not resolved through mediation, the party seeking relief may pursue all remedies available at law, subject to the terms of this Agreement.
Notwithstanding this Section, either party may (i) terminate this Agreement according to its terms, or (ii) seek injunctive or equitable relief.
PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS
EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL PARTY BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
THE MEDIATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING.
11) OTHER TERMS
Consent to Electronic Notice, Communications and Transactions
For purposes of messages and notices about the Service (including, without limitation, collections and payments issues), Guardian Medical Direction may send email notices to the email address associated with Customer’s account or provide in service notifications.
For certain notices (e.g., notices regarding termination or material breaches), Guardian Medical Direction may send notices to the postal address provided by Customer.
Customer is solely responsible for keeping an updated email address within its account for notice purposes.
GUARDIAN MEDICAL DIRECTION HAS NO LIABILITY ASSOCIATED WITH CUSTOMER’S FAILURE TO MAINTAIN ACCURATE CONTACT INFORMATION WITHIN THE SERVICE OR ITS FAILURE TO REVIEW ANY EMAILS OR IN-SERVICE NOTICES.
Customer has the ability to enter into agreements, authorizations, consents, and applications; make referrals; or engage in other transactions electronically.
ELECTRONIC SUBMISSIONS THROUGH THE SERVICE IN CONNECTION WITH SUCH ACTIVITIES CONSTITUTE CUSTOMER’S CONSENT TO BE BOUND BY SUCH AGREEMENTS AND TRANSACTIONS AND APPLIES TO ALL RECORDS RELATING TO SUCH TRANSACTIONS.
Customer represents and warrants that it has the authority to take such actions.
Customer agrees that by registering for the Service (including without limitation, any request forms or use of communications features), constitutes a request for Guardian Medical Direction to send email, fax, phone call, or SMS communications related to the Service, (including, but not limited to, upcoming appointments, special offers, billing, and upcoming events).
Guardian Medical Direction is not responsible for any text messaging or data transmission fees.
If Customer provides a cellular phone number and agrees to receive communications from Guardian Medical Direction, Customer specifically authorizes Guardian Medical Direction to send text messages or calls to such number.
Customer represents and warrants it has the authority to grant such authorization.
Customer is not required to consent to receive text messages or calls as a condition of using the Service and may opt out of such messages through the Services.
The Customer Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter.
Customer is not relying on any representation concerning this subject matter, oral or written, not included in the Customer Agreement.
No representation, promise, or inducement not included in the Customer Agreement is binding.
No modification or waiver of any term of the Customer Agreement is effective unless signed by both parties.
Notwithstanding the foregoing, Guardian Medical Direction may modify or replace the Customer Agreement as detailed in the paragraph entitled “Changes”, below.
If there is a conflict between the Terms of Service and the order form or subscription agreement, the order form or subscription agreement prevails.
Notwithstanding anything to the contrary herein, these Terms of Service are subject to change by Guardian Medical Direction on a going-forward basis in its sole discretion at any time. When changes are made to these Terms of Service, Guardian Medical Direction will make a new copy of the modified Terms available on the Services and will also update the “Last Updated” date at the bottom of the Terms of Service. Any changes to the Terms of Service will be effective immediately for new Customers and will be effective for continuing Customers upon the earlier of: (i) thirty (30) days after posting notice of such changes on the Services for existing Customers; (ii) thirty (30) days after dispatch of an e-mail notice of such changes to you; or (iii) you providing consent to the updated Terms in a specified manner, as applicable. Unless otherwise stated, your continued use of the Services constitutes your acceptance of such change(s). If you do not agree to any change(s) after receiving a notice of such change(s), then, notwithstanding anything to the contrary herein, your sole recourse is to terminate the Agreement, effective as of the end of the then current Initial Term or Renewal Term, by providing Guardian Medical Direction written notice of termination prior to your continued use of the Services. Please regularly check the Services to view the then-current Terms.
If Customer provides feedback or suggestions about the Service, then Guardian Medical Direction (and those it allows to use its technology) may use such information without obligation to Customer.
If Customer is invited to access any beta features of the Service or a Customer accesses any beta features of the Service, Customer agrees that:
such features have not been made commercially available by Guardian Medical Direction;
such features may not operate properly, be in final form, or be fully functional;
such features may contain errors, design flaws, or other problems;
it may not be possible to make such features fully functional; use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss;
such features may change and may not become generally available; and
Guardian Medical Direction is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Service.
These beta features are provided AS IS, with all faults. Customer assumes all risk arising from use of such features, including, without limitation, the risk of damage to Customer’s computer system or the corruption or loss of data.
Guardian Medical Direction may assign or transfer the Customer Agreement (or its rights and/or obligations) to any third party without Customer’s consent.
Customer may not assign or transfer the Customer Agreement to a third party without the prior written consent of Guardian Medical Direction, except that the Customer Agreement may be assigned (without Guardian Medical Direction’s consent but with notice) as part of a merger, or sale of all or substantially all of the business or assets, of Customer.
The Customer Agreement will bind and inure to the benefit of each party’s successors and permitted assigns
Independent Contractors and Enforceability
The parties are independent contractors with respect to each other.
If any term of the Customer Agreement is invalid or unenforceable, the other terms remain in effect.
Survival of Terms
All terms survive termination of the Customer Agreement that by their nature survive for a party to assert its rights and receive the protections of the Customer Agreement.
Guardian Medical Direction may use Customer’s name and logo in customer lists and related promotional materials describing Customer as a customer of Guardian Medical Direction, which use must be in accordance with Customer’s trademark guidelines and policies, if any, provided to Guardian Medical Direction. Customer may opt out of this provision by sending written notice to [email protected].
Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Customer Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party:
gives the other party prompt notice of such cause, and
uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
Except as otherwise provided herein, any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the applicable party as furnished in writing by either party hereto to the other. Guardian Medical Direction’s address for notice is: 29488 Woodward Avenue, Suite #193, Royal Oak, MI 48073, Attn: General Counsel, and by email to: [email protected].
Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.
Last Updated on June 21, 2023