Last updated: August 2020
MASTER SUBSCRIPTION AND SERVICES AGREEMENT
PLEASE READ THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT (THIS “MSA”) CAREFULLY.
BY ACCEPTING A SERVICE ORDER (AS DEFINED HEREIN) THAT INCORPORATES THIS MSA, CUSTOMER (AS DEFINED HEREIN) AGREES TO FOLLOW AND BE BOUND BY THIS MSA (INCLUDING THE LINKED DOCUMENTS REFERENCED HEREIN).
EACH SERVICE ORDER WILL BE GOVERNED BY THE TERMS OF THIS MSA AND TOGETHER WITH THIS MSA, FORMS THE ENTIRE AGREEMENT OF THE PARTIES (“AGREEMENT”).
In consideration of the mutual promises contained herein, Customer and OnCall (as defined herein) hereby agree to the following:
This MSA governs:
(a) Customer’s access to and use of OnCall’s online subscription services including any ancillary Customer support services (the “Subscription Services”) delivered as a subscription to an operating instance of OnCall’s online Web-based Platform (“Instance”), all as provided for in an order form executed by both parties (“Order”);
(b) OnCall’s provision of professional services related to the Subscription Services (the “Professional Services”) identified in a statement of work signed by both parties (“SOW”); and (c) OnCall’s provision of payment services to help Customer process payments from Patients (“Payment Services”). Subscription Services, Professional Services and Payment Services are collectively referred to as the “Services” and the Orders and SOWs are collectively referred to as the “Service Orders”.
Customer is responsible for the creation, use and termination of, and for maintaining the confidentiality of all User log-in Account credentials and passwords (collectively, “IDs”) and will immediately notify OnCall of any unauthorized use of IDs or any other breach of security relating to the Subscription Services known to Customer. IDs cannot be shared or used by more than one User and OnCall will not be liable for any activities undertaken by anyone using a User’s ID.
OnCall reserves the right, in its sole discretion, to change or disable any of the IDs used in connection with the Subscription Services where OnCall suspects there has been an attempted or actual security breach or to ensure the security of the Subscription Services.
(a) access or use the Services, except for the Permitted Purpose;
(b) allow any third party to access the Services, except as expressly permitted herein;
(c) modify, adapt, alter or translate the Subscription Services;
(d) sublicense, lease, sell, resell, rent, share, loan, distribute, transfer or otherwise commercially exploit the Subscription Services or allow the use of the Subscription Services on behalf of or for the benefit of any third party;
(e) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Subscription Services;
(g) create derivative works based on the Services or access or use the Services to develop or create a competitive service or product;
(h) attempt to circumvent any security device or feature of the Subscription Services (including contractual service limits and quantities set out in a Service Order);
(i) load or penetration test the Subscription Services, except as expressly permitted; and
(j) use the Subscription Services to store or transmit any virus, worm, trap door, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm a party’s software, hardware, systems or data (“Malicious Code”).
(a) provide Customer the support services (“Support Services”) set out in the Technical Support Policy found at: https://bit.ly/2Pt0kHC;
(b) make the Subscription Services available to Customer in accordance with the applicable Service Orders and Service Level Agreement (“SLA”) found at https://bit.ly/2PnyVH8;
(c) host the Subscription Services, provided that nothing herein shall be construed to require OnCall to provide, or bear any responsibility, for any telecommunications or computer network hardware required by Customer or any Authorized User to access the Subscription Services from the Internet;
(d) provide the Services in accordance with laws and government regulations applicable to OnCall in its provision of the Services; and
(e) be responsible for the performance of OnCall’s personnel (including employees, agents and contractors) and their compliance with OnCall’s obligations under this Agreement.
(a) ensure that any and all access and use of the Services is in compliance with the Acceptable Use Policy found at https://bit.ly/3keiXgC, this Agreement and laws, regulations and governmental or other regulatory bodies’ rules and policies applicable to Customer (including applicable privacy, data protection and anti-spam laws);
(b) be responsible for use of the Instance and the Services by Users; and
(c) provide the information and assistance (if any) specified in the applicable Service Order to enable OnCall to provide the Services to Customer.
The API is provided on an ‘as is’ and ‘when available’ basis and OnCall has no liability to Customer because of any change, temporary unavailability, suspension or termination of access to the API. Furthermore, OnCall is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by, or transmission to, a Third Party Service (as defined herein) and is not responsible for the privacy, security or integrity of that Customer Data to the extent it is transmitted out of OnCall’s systems. When APIs are updated, Customer may be required to implement and use the most current version of the API.
Access credentials may not be used by more than one individual but may be transferred from one individual to another if the original user is no longer using the API. Customer shall report to OnCall any security flaws discovered in the API or any actual or suspected unauthorized access to the API using Customer’s credentials. Where a third party is accessing the API without authorization, Customer will cooperate with OnCall in the enforcement and protection of OnCall’s rights and Customer’s access to such API may be suspended until such unauthorized activity is resolved to OnCall’s
OnCall or third parties may make available to Customer for purchase access to or use of third party software services, applications or functionality that link to, interoperate with, are used in conjunction with, or are incorporated into and resold through the Subscription Services (“Third Party Services”).
Customer acknowledges and agrees that OnCall does not own or control such Third Party Services. The Third Party Services are made available as a convenience only and are not part of the “Subscription Services” or subject to any of the warranties (whether express or implied), service commitments or other obligations with respect to Subscription Services hereunder.
Moreover, the Third Party Services providers are not partners, agents or representatives of OnCall and it is up to Customer to decide whether to use or enable these Third Party Services and Customer must rely on its own skill and judgement in electing to do business with such third parties. OnCall has no obligation to monitor or maintain Third Party Services and may disable or restrict access to any Third Party Services at any time without notice.
Access to and use of any Third Party Services, including the availability thereof and uptimes related thereto, is at Customer’s own risk and is solely determined by the relevant Third Party Services provider and is subject to such additional terms and conditions applicable to such Third Party Services. Where applicable, Customer is solely responsible for maintaining appropriate accounts in good standing with the Third Party Services providers.
OnCall will have no liability or other obligation to Customer for such Third Party Services or Customer Data exported to a Third Party Service, including but not limited to any unavailability of any Third Party Services, or any Third Party Service provider’s decision to discontinue, suspend or terminate any Third Party services.
Customer is solely responsible for the accuracy, quality, reliability, content and legality of all Customer Data and for obtaining all the necessary licences, intellectual property rights, clearances, permissions, consents and authorizations for use of Customer Data in connection with the Services (and in particular as contemplated by this Section 6.3), including with any Third Party Services. Should OnCall deem any Customer Data either to be in breach of this MSA or to be reasonably expected to constitute grounds for OnCall’s exposure to civil or criminal liability, OnCall reserves the right, but does not assume the obligation, to remove such Customer Data from the Subscription Services or, if OnCall itself is unable to do so, to request the removal or editing of such Customer Data by Customer as OnCall sees fit.
Customer will comply with any such request as soon as possible. Customer hereby grants OnCall a non-exclusive, worldwide, royalty-free right to (a) use, host, copy, store, transmit, modify, and display the Customer Data as necessary to exercise its rights under this Agreement and for the purpose of providing the Services (provided that any Customer Data that is or contains Personal Information is de- identified prior to such activities); and (b) to use the Customer’s trademarks, service marks, and logos as required to provide the Services (and in compliance with Customer’s branding guidelines).
Without limiting the foregoing, OnCall will treat all Customer Data as Confidential informations.
WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATED TO THE SERVICES AND/OR THIS AGREEMENT: (A) CUSTOMER HEREBY EXPRESSLY GIVES UP ITS RIGHT TO HAVE A TRIAL BY JURY; AND (B) CUSTOMER HEREBY EXPRESSLY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
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