PointRight Terms of Service
Please read these Terms of Service carefully before accessing and using the www.pointright.com site (the “Site”) or using a Solution, whether in connection with your evaluation of a Solution, or pursuant to a PointRight Subscription and Services Agreement. You may use a Solutions only if you first accept these terms, which constitute a binding agreement between you (either an individual or an entity) and PointRight, Inc. (“PointRight”). By using the Site or a Solution you signify your agreement with these Terms of Service, and your authority to bind your employer or corporate entity to these Terms of Service, if applicable. PointRight may modify, alter or otherwise update these Terms of Service from time to time. You agree to periodically check back to this page to keep current on the Terms of Service governing your use of a Solution.
IF YOU DO NOT AGREE WITH THESE TERMS, OR ANY NEW OR MODIFIED TERMS, DO NOT IN ANY MANNER USE THE SOLUTION OR ACCESS ANY OF THE FUNCTIONALITY OFFERED THEREIN.
These Terms of Service set forth the terms and conditions under which PointRight will provide you with access to and use of the Site and a Solution as described herein.
All capitalized terms defined in these Terms of Service have the meanings set forth herein:
- “Agreement” means a PointRight Subscription and Services Agreement entered into between you and PointRight for the terms under which you license use of one or more Solutions.
- “Business Associate” has the meaning set forth in the Health Insurance Portability and Accountability Act codified at 45 C.F.R. Parts 160 and 164, and as updated from time to time (the “HIPAA Regulations”).
- “Documentation” means any applicable on-line or hard copy manuals, user manuals, guides, release notes, or online help information and training materials that PointRight generally provides or makes available with respect to a Solutions and any individual reports requested by you and generated by PointRight as set forth in a Solutions Order or Agreement.
- “Evaluation Period” means such period, if any, that begins when you access a Solution for evaluation purposes and ends upon the earliest of (1) the end date specified by PointRight when you were provided access to a Solution; (2) the date on which your access to a Solution is disabled by PointRight. There is no charge for your use of a Solution, in accordance with these Terms of Service, during the Evaluation Period.
- “Facility” means a physical location of the business owned or controlled by you or under your exclusive management.
- “PHI” has the meaning set forth in 45 C.F.R. §160.103, as may be amended from time to time, and is limited to information PointRight received from or created or received on behalf of you as your Business Associate.
- “Solution” refers to those post-acute and long-term care analytics tools and any related onboarding, training and support services, each as identified in a Solutions Order or Agreement provided by PointRight to facilitate your Quality Assurance and Performance Improvement practices and other your regulatory compliance initiatives.
- “Solutions Order” means a document prepared by PointRight and executed by the parties identifying those Solutions that you may access during the Initial Term or Evaluation Period, as applicable, under the terms of an Agreement or Evaluation License (as defined below), if any, and at the Facilities and subject to any fees and other terms and conditions set forth therein.
- “Users” refers to your personnel authorized to access a Solution on your behalf in accordance with these Terms of Service.
3. Site Usage Requirements
The Site is made available for your personal, non-commercial use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any of the information, software, products, or services obtained from the Site. COPYING OR REPRODUCTION OF CONTENT OR SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED EXCEPT TO ANY EXTENT ALLOWED BY A RELEVANT LICENSE AGREEMENT.
4. Solution AND DOCUMENTATION Usage Requirements
- Limited Use. Subject to your compliance with the provisions of the Agreement and/or Solutions Order, if any, and these Terms of Service, you and your Users may access and use a Solution and Documentation solely for your internal use. If you have you have received access to a Solution or any Documentation for evaluation purposes, you and Users may access and use a Solution and any such Documentation solely for internal non-production testing, evaluation, and demonstration purposes, and not for commercial use (the “Evaluation License”). Each Evaluation License shall be limited to use by you and your Users for thirty (30) days, unless otherwise set forth in a Solutions Order (the “Evaluation Period”) and shall be subject to the license restrictions set forth in Section 4.2. Any Evaluation License granted pursuant to this Section 4.1 may include limited features and functionality at PointRight’s sole discretion. Notwithstanding anything to the contrary in a Solutions Order or other communication between the parties, PointRight will not and does not grant any right to make productive use of a Solution or Documentation unless you acquire a subscription to use a Solution. PointRight reserves the right to limit your and your Users’ use of a Solution in the event that PointRight determines, in its sole discretion, that your or your Users’ use of a Solution is inconsistent with such purposes, or otherwise violates these Terms of Service or an Agreement.
- Prohibited Uses. You agree, for yourself and your Users, not to use a Solution for any purpose that is unlawful, or prohibited by these Terms of Service, or inconsistent with the Documentation. You and your Users may not use a Solution in any manner that could damage, disable, overburden, or impair any PointRight or customer server, or the network(s) connected to any PointRight or customer server, or interfere with any other party’s use and enjoyment of any part of a Solution. You and your Users may not attempt to gain unauthorized access to any part of a Solution, other accounts, computer systems or networks connected to any PointRight or customer server or to any part of a Solution, through hacking, password mining or any other means.
- Use of Passwords. You are responsible for providing and administering usernames and passwords for all Users (the “Log-In Information”). You and your Users must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned User and may not be shared or transferred. You are responsible for any and all activities that occur under all User accounts. You agree to notify PointRight immediately of any unauthorized use of any User account or any other breach or potential breach of security with regard to a Solution. PointRight will not be liable for any loss that you or a User may incur as a result of misuse of your Log-in Information, either with or without the User’s knowledge.
- Suspension or Termination of Service.
(a) PointRight may at any time suspend (or require that you suspend) the access of Users to a Solution and/or disable such User’s login information in the event of violation of these Terms of Service. PointRight shall not be liable to you or any User for suspension of access to a Solution pursuant to this Section.
(b) PointRight shall be entitled, without liability to Client, to immediately suspend, terminate or limit Client’s access to a Solution at any time in the event (i) that PointRight determines, in its sole discretion, that a Solution is being used in violation of applicable federal, state or local law or ordinance; (ii) that PointRight, in its sole discretion, determines that a Solution is being used in an unauthorized, inappropriate, or fraudulent manner; (iii) of a denial of service attack or any other event which PointRight determines, in its sole discretion, may create a risk to the Solutions or to any other Clients if access to a Solution was not suspended; or (iv) of a security incident or other disaster that impacts a Solution or the security of Data. PointRight shall have no liability for any damages, liabilities or losses, including any obligation to provide any refund of Fees paid by Client, as a result of any suspension, limitation or termination of Client‘s right to use a Solution in accordance with this Section 4.3. PointRight will give Client reasonable advance notice of a suspension under this paragraph unless PointRight determines, in its reasonable discretion, that immediate suspension, limitation or termination, as applicable, is necessary to protect PointRight or its other clients from material legal, operational or security risk.
- Ongoing Data Usage. You acknowledge and agree that because of the integration of PHI into PointRight’s data models, and the ongoing development, auditing and improvement of data integrity tests, performance benchmarks, algorithms, analytics, metrics, scoring systems, predictive models, and decision support tools for use by all Solution clients, it is infeasible for PointRight to return or destroy any PHI included in the Data, as defined in Section 5.1, upon any termination of these Terms of Service for any reason. You also acknowledge and agree that PointRight shall be entitled to make use of and disclose de-identified data, which consists of analytics related to PHI, as necessary to perform its obligations to You, and as part of the Solutions.
- Access to Site and Solution. You are responsible for obtaining access to the Site and a Solution, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary for you to access the Site and a Solution.
- Internet. PointRight does not guarantee the security of any information transmitted to or from you or any User over the Internet, including through the use of e-mail. Access to the Internet, if employed, is Customer’s sole responsibility and the responsibility of any internet services provider you utilize. PointRight does not accept any responsibility for failure of a Solution due to Internet facilities, including related telecommunications and other equipment.
5. OWNERSHIP; RESTRICTIONS
- Your Ownership and License. As between you and PointRight, you own any artwork, logos, trade names, and trademarks that you provide to PointRight and any patient care or other data you submit to the Site or provide to PointRight in connection with a Solution (collectively, “Data”). In order for PointRight to provide a Solution, you grant to PointRight and its suppliers a worldwide, nonexclusive, fully paid-up license to use, reproduce, store, modify, and display Data. If PointRight is or becomes your Business Associate pursuant to an Agreement or these Terms of Service, then PointRight may make use of and disclose analytics related to PHI contained in the Data as reasonably required to perform PointRight’s obligations under the Agreement and as part of the PointRight Solutions and other services made available to third parties. All such use of PHI by PointRight shall be subject to and in accordance with its obligations under a Business Associate Agreement entered into by the parties.
- PointRight Ownership and License. Subject to your rights in and to Data set forth above, PointRight or its licensors have all right, title, and interest in and to the Site, a Solution and any Documentation. PointRight grants to you a nonexclusive, fully paid-up license to use the Documentation, solely to the extent necessary for you and your Users to use a Solution in accordance with these Terms of Service. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Marks”) relating to a Solution are the trademarks of PointRight, its suppliers or their licensors. You are prohibited from using any Marks without the prior written permission of PointRight or the owners thereof. PointRight reserves all rights not expressly granted in these Terms of Service. All rights not expressly granted to you hereunder are reserved by PointRight. PointRight may aggregate benchmarking results of your use of a Solution with results of other customers’ use, and use and disclose such results on an anonymized basis for any purpose provided PointRight does not individually identify Data, or your use of a Solution. If you or your Users provide any feedback, comments, suggestions, ideas, requests, or recommendations for modifications or improvements to the Site or a Solutions, you hereby assign all right, title, and interest in any such feedback to PointRight to be used for any purpose.
- Restrictions. Except to the extent otherwise expressly authorized by PointRight under these Terms of Service, you shall not (and shall not allow any third party to) copy, modify, adapt, translate, publicly display, publish, create derivative works of or distribute a Solution or the Documentation, or any part thereof. You will not use the Site, a Solution or Documentation for any purposes beyond the scope of or otherwise not in accordance with the licenses granted herein. Without limiting the foregoing, you will not (i) authorize or permit use of the Site, Solution or Documentation by or for persons other than Users; (ii) use, install or configure the Solutions other than in accordance with PointRight’s specifications (iii) assign, sublicense, sell, lease or otherwise transfer or convey the licenses granted hereunder; (iv) modify or create any derivative works of a Solution or Documentation (or any component thereof); or (v) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Site or a Solution is compiled or interpreted. You hereby acknowledge that nothing in these Terms of Service shall be construed to grant you any right to obtain or use such source code or any related software. You shall duplicate all proprietary notices and legends of PointRight upon any and all copies of the Documentation authorized to be made by you and shall not remove, alter or obscure any such proprietary notice or legend. PointRight may subcontract a Solution, or any part thereof, to subcontractors selected by PointRight.
- U.S. Government Users. The Solution and Documentation are provided with Restricted Rights for U.S. Government users. Government end users may access a Solution and Documentation with only those rights set forth in these Terms of Service. Use of a Solution and Documentation constitutes agreement by the Government that a Solution is “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
- PointRight reserves the right to suspend or discontinue a Solution, or any part thereof, (or otherwise terminate these Terms of Service) at any time without notice.
- Obligation. PointRight agrees that all non-public financial, business planning, marketing and personnel data relating to your business, in each case as disclosed to PointRight in connection with a Solution, are your confidential information (“Client Confidential Information”) subject to this Section 6, except as specifically set forth in Section 5.1. You agree that non-public information labeled as confidential by PointRight and PointRight’s methodologies, products, tools and proprietary software, training materials, industry templates and data, and any updates, changes and additions to the foregoing, in each case as disclosed to you in connection with a Solution, are confidential information of PointRight (“PointRight Confidential Information”). Client Confidential Information and PointRight Confidential Information are collectively referred to as “Confidential Information.” Neither party will, without the prior written consent of the other, disclose to any third party any Confidential Information which is received from the other party for the purposes of providing or receiving PointRight Services. Each party agrees that any such Confidential Information received by it from the other may be used by its personnel only for the purposes of providing or receiving a Solutions under this or any other contract between the parties. These restrictions will not apply to any information which: (i) is or becomes generally available to the public other than as a result of a breach of an obligation under this Section 6; (ii) is acquired from a third party without an obligation of confidentiality; (iii) is or has been independently developed by the recipient or was known to it or them prior to receipt; or (iv) is generally known or easily ascertainable by non-parties of ordinary skill in computer or process design or programming or in the business of Customer. Neither party will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party’s exercise of the same level of protection and care that such party customarily uses in safeguarding its own confidential information, but not less than reasonable care. Upon any termination of these Terms of Service for any reason you will return or destroy all PointRight Confidential Information in your possession or control including all copies thereof, in any form or media, and shall upon request, certify that all copies have been returned or destroyed.
- Permitted Disclosure. Notwithstanding Section 6.1 above, each party will be entitled to disclose Confidential Information of the other: (i) to its respective insurers or legal advisors; and (ii) to a third party, to the extent that this is required by any court of competent jurisdiction, by a governmental or regulatory authority, or where there is a legal right, duty or requirement so to disclose, provided that in the case of sub-Section 6.2 (ii), where reasonably practicable (and without breaching any legal or regulatory requirement) not less than 2 business days’ notice in writing is first given to the other party. Notwithstanding anything to the contrary, PointRight may disclose Confidential Information referred to in this Section 6 to (a) PointRight’s personnel or (b) a third party as may be necessary for the delivery of a Solution, subject to such third party agreeing, in writing, to be bound by similar terms and conditions.
- Notwithstanding Sections 6.1 and Section 6.2 above, PointRight may cite the performance of the PointRight Services to its Customers and prospective Customers as an indication of PointRight’s experience, unless you and PointRight specifically agree otherwise in writing.
You agree to defend, indemnify, and hold harmless PointRight and its officers, directors, employees, consultants, agents and suppliers from and against any and all third party claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of or related to: (i) your use of the Site or a Solution, (ii) any violation of these Terms of Service or applicable law by you in connection with your use of the Site or a Solution, or (iii) actual or alleged infringement by you, your Users, or any other person accessing a Solution using your login credentials, of any intellectual property, privacy or other right of any third party, (iv) your provision of Data to PointRight; or (iv) any unauthorized use of the Site, Solution or Documentation, or any part thereof.
8. DISCLAIMER OF WARRANTIES
THE SITE, THE SOLUTION AND ANY DOCUMENTATION OR OTHER POINTRIGHT CONFIDENTIAL INFORMATION ARE PROVIDED TO YOU “AS IS” AND PointRight AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
POINTRIGHT does not warrant that the SITE OR THE SOLUTION WILL MEET YOUR requirements, that the operation thereof will be uninterrupted or error-free, or that all errors will be corrected. Without limiting the foregoing, YOU ACKNOWLEGE and agree that (i) POINTRIGHT cannot guarantee the performance of any THIRD PARTY SERVICE OR THE RELIABILITY OF ANY THIRD PARTY CONTENT, and (ii) POINTRIGHT shall not be responsible for any disruption to or failure of the SITE OR THE SOLUTION resulting from the actions or inactions of any Third Party Service OR CONTENT Provider.
9. LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES
IN NO EVENT WILL PointRight OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SITE OR the SOLUTION, OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF PointRight, ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE MAXIMUM AGGREGATE LIABILITY OF PointRight, ITS AFFILIATES OR SUPPLIERS OR RESELLERS AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO YOUR USE OR ATTEMPTED USE OF THE SITE OR THE SOLUTION WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOLUTION, IF ANY.
10. Geographic Scope
Although you may have accessed the Site or a Solution outside of the United States of America, delivery of the Site and a Solution by PointRight or its suppliers will only occur within the United States of America, and PointRight’s obligations hereunder are valid only in the United States of America. You acknowledge and agree that the Site and the Solutions are intended for use by you only within the United States.
11. Governing Law; Exclusive Forum
These Terms of Service, and the relationship between you and PointRight resulting from your use or attempted use of the Site or a Solution, and the resolution of any dispute arising out of that relationship, shall all be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any conflict of law principles or provisions. You agree that any legal action or proceeding arising out of or related in any manner to these Terms of Service, or the relationship between you and PointRight resulting from these Terms of Service or your use or attempted use of a Solution, shall be brought exclusively in the state or federal courts located in Boston, Massachusetts. The parties expressly waive any right to a jury trial for disputes related to the subject matter of these Terms of Service. Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to a breach of these Terms of Service must be commenced no later than two (2) years from the date on which the cause of action arose.
12. Injunctive Relief
You acknowledge and agree that a Solution and Documentation possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustained as a result of unauthorized use, and that unauthorized use may cause immediate and irreparable damage to PointRight or other customers for which PointRight or such other customers would not have an adequate remedy at law. Therefore, you agree that, in the event of such unauthorized use, in addition to such other legal and equitable rights and remedies as may be available to PointRight, PointRight shall be entitled to injunctive and other equitable relief without the necessity of proving damages or furnishing a bond or other security in any court of competent jurisdiction.
If any part of these Terms of Service is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. PointRight’s failure to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision unless agreed to by PointRight in a writing signed by a duly authorized representative of PointRight. PointRight reserves the right to modify the Terms of Service at any time by providing such revised terms to you. Your continued use of a Solution shall constitute your acceptance to be bound by any such revised terms and conditions.