Last updated 24/05/2018
These Botdoc Corporate Terms of Service (these “Corporate TOS”) are between ShortSave, Inc., a Colorado corporation (“ShortSave”), and the organization agreeing to these Corporate TOS as set forth below (“Customer”). As a condition of Customer’s use of and access to the botdoc.io website, the Botdoc service, and any related software (collectively, the “Services”), Customer agrees as follows:
1.1. Acceptance of Terms. By clicking “I accept” and accessing and using the Services, the person accepting these Corporate TOS agrees that they are authorized to accept the terms set forth in these Corporate TOS on behalf of Customer. By continuing to use the Services, Customer agrees to be bound by these Corporate TOS.
1.2. Use of the Services. For and in exchange for the mutual agreements set forth in these Corporate TOS, ShortSave will provide Customer and its users with access to the Services during the Term (as defined below). Customer and its users will only use the Services in accordance with these Corporate TOS.
2. Customer Obligations. Customer’s use of the Services shall be subject to the following conditions:
2.1. Customer is responsible for its and its users’ use of the Services, including the accuracy, quality, and legality of any data, files, documents, or information that Customer or its users request, transmit, or store in the Services, regardless of format (“Data”);
2.2. Customer will not license, sublicense, sell, transfer, assign, perform, display, distribute, or otherwise exploit or make the Services available to third parties. Customer will not gain unauthorized access to the Services or its related systems or networks;
2.3. Customer is responsible for the security of its login credentials and account information;
2.4. Neither Customer nor its users will disassemble, reverse engineer, modify, translate, alter, decompile, or create derivative works from the Services.
2.5. Customer and its users must use the Services in compliance with ShortSave’s Acceptable Use Policy at https://botdoc.io/acceptable-use-policy/. Customer is responsible for use of the Services by its users. Customer will comply with laws and regulations applicable to Customer’s use of the Services, if any. Customer will obtain and maintain from its users any consents necessary to allow its Botdoc team administrators and owners to engage in the activities described in these Corporate TOS and to allow ShortSave to provide the Services.
2.6. Customer will not use Botdoc for any purpose that violates the rights of any third party or applicable law, including, without limitation, the Heath Insurance Portability and Accountability Act of 1996, as modified (“HIPAA”) and the Family Educational Rights and Privacy Act, as modified (“FERPA”).
3. Customer Representations and Warranties. Customer represents and warrants to ShortSave that: (a) Customer has the requisite right and authority to use the Services and enter into this TOS, and that all necessary corporate action has been taken to authorize the same; (b) the Account Manager has the requires authority to fulfill their obligations under this Agreement; and (c) Customer’s execution and performance of this Agreement is not in conflict with, or cause a default under, any other agreement by which Customer is bound.
4. Botdoc Teams.
4.1. The person identified by Customer during account creation (the “Account Manager”) will serve as the primary point of contact for Customer for all matters relating to the Services and will be a Botdoc team owner for Customer’s Botdoc team. The Account Manager shall possess full permission to manage Customer’s Botdoc account.
4.2. Customer may specify users as Botdoc team administrators or owners through the My Team Dashboard. Customer is responsible for maintaining the confidentiality of passwords and Botdoc team administrator and owner accounts, and managing access to Botdoc team administrator and owner accounts. Customer is solely responsible for the internal management and administration of its Botdoc team and its users’ use of the Services. Customer acknowledges that, if Customer purchases the Services through a reseller and designates any of the reseller’s personnel as Botdoc team administrators or owners of Customer’s account, the reseller may be able to control account information and access Customer’s account.
5.1. Requesting Data via the Services requires that ShortSave shares user mobile phone numbers and/or email addresses with the recipient of a user’s request. Customer grants ShortSave permission to share this information with any person whom Customer’s users send a request for Data over the Services.
5.2. Customer grants ShortSave permission to access and review Customer’s Botdoc account and Botdoc team (this does not include Customer’s or its users’ Data) to comply with technical requests, customer service requests, and for compliance with these Corporate TOS; provided, however, that ShortSave has no obligation to ensure Customer’s or any of its user’s compliance with these Corporate TOS.
5.3. Customer acknowledges and agrees that ShortSave may prepare, use, sell, and distribute aggregated de-identified information collected by and stored in the Services (excluding Data). In addition, ShortSave may share Customer’s, its users’, and other users’ usage statistics, but not Data, to its third party marketing partners.
5.4. Customer grants ShortSave permission to share its billing information with ShortSave’s third-party billing services provider. ShortSave’s third-party billing services provider is PCI DSS certified.
6. Additional Services. Customer may elect to purchase additional setup, training, or other professional services from ShortSave and such additional services will be set forth in a separate agreement or a work order addendum to these TOS. The Fees (as defined below) do not include such additional services. Such additional services may include, for example, additional training, setup services, webinars, and enhanced customer support.
7. Payment Terms.
7.1. Customer will pay ShortSave or ShortSave’s reseller, as applicable, all applicable fees for the Services (the “Fees”), agreed to during account creation, or set forth in Customer’s agreement with ShortSave’s reseller, as applicable. In addition to the Fees, your standard text messaging rates may apply.
7.2. Customer will pay ShortSave monthly or annually per the subscription plan selected during account creation, or in its agreement with ShortSave’s reseller, as applicable. Customer will provide complete and accurate billing and contact information to ShortSave or ShortSave’s reseller, as applicable.
7.3. The Fees are exclusive of taxes which are the sole responsibility of Customer.
7.4. If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase (only valid for subscriptions through a reseller); and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void. If Customer is purchasing the Services via a reseller, any terms and conditions from Customer’s agreement with such reseller or in a purchase order between Customer and the reseller that conflict with these Corporate TOS are null and void.
8. Botdoc Account Suspensions. If Customer or one of Customer’s users (a) violates these Corporate TOS; (b) violates its terms of service with ShortSave; (c) violates our Acceptable Use Policy; or (d) uses the Services in a manner that ShortSave reasonably believes will cause it liability, then ShortSave may suspend or terminate Customer’s and/or the applicable user’s Botdoc account. Notwithstanding anything in this Agreement, ShortSave may suspend use of and access to the Services in the event of (x) use of the Services that do or could disrupt the Services, other customers or users’ use of the Services, or the infrastructure used to provide the Services; or (y) unauthorized third party access to the Services.
9. Intellectual Property Rights. Customer acknowledges that all right, title, and interest in and to any and all technology and intellectual property forming part of the Services or the provision thereof, including, without limitation, all patents, inventions, copyrights, trade secrets, trademarks, service marks, trade names, and other intellectual property rights (collectively, “Intellectual Property”), in and to the Services is vested in ShortSave. Nothing in these Corporate TOS shall give Customer any right, title, claim, or interest in or to any such Intellectual Property. In the absence of ShortSave’s prior written consent, Customer shall not use Intellectual Property, in any manner, except as permitted by these Corporate TOS. All rights in the Services are expressly reserved.
10. Term; Termination.
10.1. Either party may terminate these TOS, upon written notice to the other party, if such other party is (a) subject to proceedings in bankruptcy or insolvency, if a receiver is appointed, or if the other party assigns its property to its creditors, or (b) in material breach of these TOS and such breach is not cured within 30 days written notice thereof. The parties’ right to terminate these TOS pursuant to this Section 8.1 is without prejudice to, and shall not affect any other remedies available to, the parties.
10.2. Customer shall have the right to terminate the Services and these TOS without cause upon 90 days written notice. If the Services are purchased pursuant to a reseller agreement, Customer’s ability to terminate shall be subject to the terms of such agreement. Except as expressly set forth in these TOS, ShortSave does not offer refunds of Fees.
10.3. ShortSave may terminate Customer’s access to the Services and its Botdoc account immediately and without notice if any payment due to ShortSave pursuant to these TOS is not received on the date on which it is due.
11. Ongoing Obligations. Customer’s obligations pursuant to the following Sections shall survive the expiration or termination of these Corporate TOS: 3, 9, and 11 through 18.
12. NO WARRANTIES. THE SERVICES ARE PROVIDED “AS IS.” SHORTSAVE DOES NOT MAKE AND NEITHER CUSTOMER NOR ITS USERS SHALL RECEIVE ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SHORTSAVE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, USAGE OF TRADE, UPTIME GUARANTEE, AND COURSE OF DEALING TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13. ShortSave’s IP Indemnification. ShortSave will defend Customer from and against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that Customer’s proper use of the Services constitutes infringement of any United States patent, trademark, copyright of any third party (an “IP Claim”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under, a court-approved settlement of an IP Claim; provided that Customer (a) promptly gives ShortSave written notice of the IP Claim, (b) gives ShortSave sole control of the defense and settlement of the IP Claim (provided that ShortSave may not settle any IP Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides ShortSave all reasonable assistance requested at ShortSave’s expense. ShortSave may, at its sole discretion and sole expense: (i) modify or replace the Services so that they become non-infringing; (ii) obtain a license for Customer’s continued use of the Services; or (iii) immediately terminate Customer’s subscription to the Services and provide Customer an equitable refund of fees paid by Customer to ShortSave. ShortSave shall have no obligation to indemnify Customer if the IP Claim results from, arises out of or relates to Customer’s or any of its user’s failure to use or operate the Services in accordance with instructions and parameters provided by ShortSave. The foregoing provisions constitute Customer’s sole and exclusive remedies and ShortSave’s entire liability, with respect to IP Claims.
14. Customer’s Indemnification. Customer shall defend ShortSave against any claim, demand, suit or proceeding made or brought against ShortSave by a third party alleging that Customer’s or its users’ use of the Services or ShortSave’s use, storage or collection of the Data infringes or misappropriates the intellectual property rights of a third party or violates any applicable law, including HIPAA (“Customer Claim”) except in circumstances where such claim arises out of ShortSave’s gross negligence or willful misconduct, and Customer agrees to indemnify ShortSave for any damages, attorney fees and costs awarded against ShortSave; provided that ShortSave: (a) promptly gives Customer written notice of the Customer Claim, (b) gives Customer sole control of the defense and settlement of the Customer Claim (provided that Customer may not settle any Customer Claim unless the settlement unconditionally releases ShortSave of all liability); and (c) provides Customer all reasonable assistance requested at Customer’s expense.
15. Data Storage; Data Access; Maximum File Size.
15.1. When Customer or its users transmit Data over the Services, the recipient will receive a download or upload link to access the Data or transmit the Data, as applicable. Both the download or upload link and the Data will be removed from ShortSave’s servers after a period of time described within the Botdoc Dashboard. It is Customer’s and its user’s responsibility to retrieve and store Data that Customer or its users request. ShortSave has no obligation to store Data for any period of time. ShortSave will not be liable for the deletion, destruction, damage, loss, or failure to store any Data. Upon termination of these TOS, ShortSave may delete all of Customer’s and its users’ Data.
15.2. Because all Data is maintained in an encrypted form, ShortSave has no control over any Data and cannot access any Data.
15.3. Customer acknowledges and agrees that neither it nor its users will be allowed to transmit or receive Data above the maximum file size specified in the Botdoc dashboard.
15.4. To the extent Customer is a Covered Entity (as defined in HIPAA), Customer, by its acceptance of this Agreement, and, ShortSave, by accepting Customer’s initial payment of the Fees, agree to be bound by the provisions of the Business Associate Agreement attached hereto as Exhibit A.
16. Security. ShortSave will employ security measures in regards to the Services and Customer’s Data in accordance with applicable industry practice. In the event of a data breach involving Customer’s or its users’ Data, ShortSave will promptly notify Customer thereof.
17. International Data Transfers. If Customer is established in the European Economic Area or Switzerland (“EEA”), it acknowledges and agrees that Botdoc may transfer Customer Data, including without limitation Personal Data, outside of the EEA for processing. Upon Customer’s explicit written request, Botdoc may execute Standard Contractual Clauses approved by the European Commission for the benefit of the Customer (“Customer SCCs”) in order to ensure adequate protection for the Personal Data in accordance with the requirements of Articles 25 and 26 of the EU Directive. These Terms “Personal Data”, “Process/Processing”, “Controller”, “Processor”, “Sub-processor”, and “Data Subject” will have the meanings ascribed to them in the Data Processing Addendum (“DPA”) at https://botdoc.io/data-processing-addendum/.
18.1. “Confidential Information” means any trade secrets or other information of ShortSave or Customer, whether of a technical, business, or other nature (such as the Botdoc software or your Data) that is disclosed to the other party (the “Recipient”) and that is marked “confidential,” or, where or not marked, that a reasonable person would understand to be confidential given the circumstances of the disclosure. Confidential Information does not include any information that: (a) was known to the Recipient before receiving it from the disclosing party; (b) is independently developed by the Recipient without use of or reference to any Confidential Information of the other party; (c) is acquired by the Recipient from another source that did not receive it in confidence from the other party to this Agreement; or (d) is or becomes part of the public domain through no fault or action of the Recipient.
18.2. During and after the term of this Agreement, the Recipient will (a) use the Confidential Information of the other party only for purposes that are within the scope of this Agreement; (b) not disclose such Confidential Information to a third party, except on a need to know basis to its attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained in this Section 16; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. Notwithstanding the foregoing, Customer expressly permits ShortSave to transmit and store Customer’s Data for purposes of Customer’s use of the Services.
18.3. If the Recipient is required by law to disclose Confidential Information of the other party, the Recipient will give prompt written notice to the other party before making the disclosure.
18.4. The Recipient acknowledges that any actual or threatened breach of this Section 16 may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain. Accordingly, the disclosing party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing party at law or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches. Absent written consent of the disclosing party to the disclosure, the Recipient, in the case of a breach of this Section 16, has the burden of proving that the disclosing party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 16.
19. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY OF SHORTSAVE FOR ALL CLAIMS ARISING UNDER OR RELATED IN ANY WAY TO THESE CORPORATE TOS FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT OR OTHER STATUTORY, LEGAL OR EQUITABLE GROUNDS, SHALL NOT EXCEED THE AMOUNT PAID TO SHORTSAVE PURSUANT TO THE PURCHASE ORDER DURING THE PRECEDING 12 MONTHS OR, IF CUSTOMER IS PURCHASING THE SERVICES PURSUANT TO AN AGREEMENT WITH A RESELLER, $20. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
20. Arbitration. Except as may otherwise be provided in these TOS, to the maximum extent permitted by law, all disputes, controversies, claims, or demands of any kind or nature arising between the parties in connection with these TOS, whether at law or in equity or based upon common law or any federal or state statute, rule, or regulation will be resolved through binding arbitration. Any arbitration commenced hereunder shall be initiated in Denver, Colorado and shall be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (the “AAA”) from time to time in force. The arbitration shall occur before a single arbitrator (the “Arbitrator”) that shall be selected in accordance with the rules of the AAA. This submission and agreement to arbitrate shall be specifically enforceable.
21.1. These Corporate TOS shall inure to and be binding upon ShortSave’s successor and assigns. Customer may not assign its rights and obligations under these Corporate TOS without ShortSave’s prior written consent, which may be withheld in its sole discretion. To the extent a proposed assignee of these Corporate TOS is a Covered Entity (as defined in HIPAA), any consent given to Customer to assign these Corporate TOS to such Covered Entity Assignee is conditioned upon such Covered Entity assignee agreeing to be bound by the terms of the Business Associate Agreement. Any unauthorized transfer of these Corporate TOS shall be null and void. Furthermore, to the extent an assignee is a Covered Entity (as defined in HIPAA), Customer hereby covenants to ShortSave that any transfer, assignment, conveyance, or other provision of access to the assigned Data to such Covered Entity assignee, as contemplated by this Section 20.1, will be in connection with Customer’s “health care operation” and “business management and general administrative activities,” as such terms are defined in 45 CFR 160.501.
21.2. ShortSave shall not be liable or responsible to Customer or any other party, nor shall ShortSave be deemed to have defaulted under or breached these TOS for any failure or delay in fulfilling or performing any term of these TOS, when and to the extent such failure or delay is caused by or results from acts beyond ShortSave’s control, including without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of these TOS; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power or disturbances to telecommunications and internet infrastructure. In the event that ShortSave cannot remedy its failure or delay to perform for any of the above reasons, and such failure or delay remains uncured for a period of 60 days, either party may terminate these TOS.
21.3. Only ShortSave may modify these Corporate TOS. If ShortSave modifies, amends, or updates these Corporate TOS, it will provide notification of such modification, amendment, on the Botdoc website.
21.4. If any part of these Corporate TOS are held by any court of competent jurisdiction to be invalid, the remaining parts of these Corporate TOS shall continue to be valid and enforceable as to the parties hereto.
21.5. Any notice which may be permitted or required under these Corporate TOS shall be delivered personally, or by email, or sent by United States registered or certified mail, postage prepaid, addressed: (a) to ShortSave at ShortSave, Inc., Attn: Karl Falk, 15954 Jackson Creek Parkway, Suite B572, Monument, CO 80132, email: firstname.lastname@example.org, and (b) to Customer at the contact information for the Account Manager. Notice given by email shall promptly be confirmed by registered or certified mail or overnight carrier shall be deemed to be received upon verification that such email was received by the other party. Notice by registered or certified mail or overnight carrier and shall be deemed to be received 2 days following the date of mailing, provided such notice is properly addressed and sufficient postage is affixed thereto, or the actual date of receipt, whichever is earlier.
21.6. If performance by either party of any other obligation under these TOS, except for Customer’s payment obligations hereunder, is prevented, restricted, delayed, or interfered with by reason of causes beyond its reasonable control, including, without limitation, natural disasters, governmental actions, floods, fires, arson or civil disturbances, transportation or telecommunications problems, Customer caused errors, failure of third-party licensors or vendors to support software or hardware products, or failure of ShortSave’s suppliers or subcontractors, such party shall be excused from such performance for such time as may be required for the party, through the exercise of commercially reasonable efforts, to cure such prevention, restriction, delay, or interference. The party affected by a force majeure event will advise the other party in reasonable detail of the event as promptly as practicable, including the estimated duration of the event, and keep the other party reasonably apprised of the progress in resolving the event.
21.7. The waiver or failure of ShortSave to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
21.8. These Corporate TOS shall be governed by, construed, and enforced in accordance with the laws of the State of Colorado, without reference to, or application of, its conflict of laws principles. The terms of Section 18 notwithstanding, any litigation under these Corporate TOS must be brought in a state or federal court sitting in the County of El Paso.
21.9. These Corporate TOS shall not be deemed to create any rights in third parties.
22. Compliance with Laws. You represent and warrant that your use of Botdoc will comply with all applicable laws and regulations. If you’re located in the European Economic Area (EEA) or send to anyone in the EEA, you represent and warrant that in creating a User Account, sending or collecting information, you: 1) Have complied, and will comply, with all regulations, as well as data protection, electronic communication, and privacy laws that apply to the countries where you’re sending any form of communications through Botdoc. 2) Have collected, stored, used, and transferred all data relating to any individual in compliance with all data protection laws and regulations. You have the necessary permission to allow Botdoc to receive and process data and send communications to that individual on your behalf. 3) Agree to the Data Processing Addendum (“DPA”) at https://botdoc.io/data-processing-addendum/