Terms of Service
These Terms govern Your use of the PogoMD online service, any service offerings or features provided by PogoMD, the PogoMD website, any PogoMD downloadable Client software which is provided solely for the purpose of accessing the services (a “Client”), and any updates and written documentation (together with the Client, the “Services”). Your continued use of the Services following modification to the Services or these Terms constitutes Your agreement to be bound by the modified Terms. If You do not agree to be bound by these Terms, You may not use the Services.
To access and use the Services, You must create a PogoMD account that is protected by a username and password (Your “Account”). You agree to provide PogoMD with accurate and complete information when You register for an Account. You agree to keep Your password and other Account details secret, and not share them with anyone else, in order to prevent unauthorized access to Your Account. If Your contact information or other Account information changes, You must update Your Account details promptly. After You create an Account, You may upload Your information, files and folders which You have a legal right to copy, share, upload, download or otherwise use, to Your Account.
If You obtained access to the Services through a legal entity such as Your business, or through a PogoMD authorized reseller, You acknowledge and agree that other users may have been designated to access, control or manage any information or content that is protected by Your Account. You, not PogoMD, are solely responsible for access to content in your account. PogoMD is not liable for any loss or damage arising from any access to, content in, or sharing and use of Your Account. If You believe there has been unauthorized access to Your Account, You must notify firstname.lastname@example.org immediately.
PRIVACY AND SECURITY
Your subscription to the Services will commence on the earlier of the time and day You click the “I AGREE” button or when You first use the Services. Subscriptions last for a fixed period of time, for example, XX day free trial, monthly subscription, 1 year subscription, etc. (the “Subscription Period”). Unless You designate otherwise in Your Account preferences, Your subscription will automatically renew at the end of the Subscription Period and PogoMD will charge the then-current renewal fees to Your Account. If You cancel a subscription, PogoMD is not obligated to refund subscription charges already paid. Cancellation will take effect at the end of the current Subscription Period unless a sooner date is requested. After cancellation, You will no longer be able to access or use any Services, other than receipt of information from referred providers. Your subscription will automatically terminate or expire upon the earlier of (1) non-renewal, cancellation or expiration of a subscription or failure to pay subscription fees when due, if applicable, (2) PogoMD’s discontinuation of the Services, or (3) failure to comply with these Terms. You acknowledge and agree that PogoMD’s policy is to automatically terminate Your Account and access to the Services, and automatically purge all uploaded data and documents, including patient files and accounts associated with Your Account after non-renewal, termination or expiration of Your Subscription Period to the Services.
PogoMD may designate certain enhancements and new releases of the PogoMD Services as “Beta Services.” Beta Services are not intended for use in a production environment. You acknowledge and agree that (1) Beta Services are experimental in nature, have not been fully tested and may be discontinued at any time, (2) Beta Services may not meet Your requirements or perform as intended, (3) use of Beta Services may not be uninterrupted, error free or free of faults, (4) Your use of Beta Services are for the sole purpose of evaluating and testing the service and providing feedback to PogoMD, and (5) You shall inform Your employees, staff members and other users regarding the nature of Beta Services. By using Beta Services You acknowledge the above conditions and expectations of performance and reliability. Your use of Beta Services is and shall be subject to these Terms.
PogoMD may offer free Services. Free Services have no fixed Subscription Period and are valid as long as PogoMD continues to offer the free Service. Free Services require an active Account and are subject to certain usage limits which are explained within each free Service. Free Services associated with Your Account that remain inactive for a period of ninety days may be removed and your data deleted without further notice to You. PogoMD may discontinue free Services at any time, at which point your access to the free Service will end.
PogoMD may terminate Your access to and use of the Services if You (1) harm, disrupt or otherwise engage in activity that diminishes the PogoMD brand, Services, computer system or network, (2) misrepresent Your identity, impersonate any person or attempt to gain access to any Account, computers or networks related to the Services, without authorization, (3) attempt to interfere with any other person’s use of the Services, (4) use a Service inappropriate for Your usage (for example, if You are using secure messaging for inappropriate purposes), (5) use the Services in a manner that results in excessive bandwidth and/or storage usage, as determined by PogoMD, (6) use the Services to store, backup or distribute any illegal files or data, (7) use the Services to store, backup or distribute material protected by intellectual property rights of a third party unless You own or have rights to such material, (8) use the Services to store, backup or distribute material that contains viruses, Trojan horses, worms, corrupted files or any other similar software that may damage the operation of the Services or another person’s computer or property, (9) reverse engineer, decompile, disassemble, modify or create derivative works of the Services, (10) alter or modify any disabling mechanism which may be included in the Services, (11) assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Services, (12) directly or indirectly permit any third party to copy the Services, (13) remove or fail to reproduce on any permitted backup or archival copy of the Services any proprietary notices (e.g., copyright and trademark notices) from the Services, or (14) infringe the intellectual property or other legal rights of third parties.
You are solely responsible for ensuring that Your use of the Services is in compliance with all applicable foreign, federal, state and local laws, rules and regulations, including all HIPAA regulations. You shall defend, indemnify and hold PogoMD, its officers, directors, shareholders, affiliates, suppliers and licensors, harmless from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs and expenses (including attorneys’ fees, expert fees and out-of-pocket expenses) in connection with Your use of the Services, Your violation of these Terms, Your violation of any third-party rights, including any intellectual property rights, any misuse or fraudulent use of credit and debit cards, any claims that the Services or any party thereof were exported or otherwise shipped, shared or transported by You in violation of applicable laws, rules and regulations, or any claim of misuse of the Services, including but not limited to any claim that You are storing illegal files or data in Your Account.
You may be required to download a Client. The Client is licensed to You for the sole purpose of accessing the Services. The Services may automatically update the Client installed on Your computer when a new version is available. While you have an active Account, PogoMD grants You a revocable, limited, non-transferable, non-exclusive license to access the PogoMD website and use the Client and Services. You may use the Services only in accordance with the then-current documentation and customer support available at www.pogomd.com or as specified in other documentation provided by PogoMD or an authorized reseller. The Services may contain or PogoMD may provide to You third-party hardware, products, software or programming, or You may obtain third-party hardware, products, software or programming from third parties directly, (“Third-Party Components”) and You acknowledge that license terms accompanying such Third-Party Components will govern their use. Except for the limited license granted herein, You acknowledge that PogoMD or third parties own all right, title and interest in and to the Services, all copies thereof and all proprietary rights therein, including copyrights, patents, trademarks, logos, domain names or other brand features of PogoMD. You may provide feedback to PogoMD with respect to the Services and PogoMD may use feedback for any purpose without obligation of any kind. To the extent a license is required under Your intellectual property rights to make use of the feedback, You hereby grant PogoMD an irrevocable, non-exclusive, perpetual, royalty free license to use the feedback in connection with PogoMD’s business, including enhancement of the Services.
PogoMD may discontinue, suspend or modify the Services, any feature included in the Services, or the availability of the Services on any particular device or communications service, at any time and without notice to You. If any third party makes an intellectual property infringement claim relating to the Services, PogoMD reserves the right to immediately terminate Your subscription. While not obligated to do so, PogoMD will endeavor to communicate any such actions to You by either sending You an e-mail or by posting relevant information to the PogoMD website.
DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
YOUR INSTALLATION, USE AND ACCESS OF THE SERVICES IS AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER, SOFTWARE AND THE LOSS OF UPLOADED DATA THAT RESULTS FROM THE USE THEREOF. YOUR UPLOADED DATA MAY NOT BE AVAILABLE IF (1) YOUR COMPUTER IS UNABLE TO ACCESS THE INTERNET OR POGOMD SERVERS, (6) YOU FAIL TO FOLLOW POGOMD’S TECHNICAL REQUIREMENTS, INCLUDING UPGRADING THE VERSION OF THE SERVICES AS REQUIRED, OR (7) YOU TERMINATE YOUR LICENSE OR FAIL TO RENEW YOUR SUBSCRIPTION TO THE SERVICES.
THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT POGOMD DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (1) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR SOFTWARE, OR (2) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS AND NETWORKS. POGOMD IS NOT RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR ACCOUNT AND YOUR COMPUTER SYSTEMS. THE SERVICES AND THIRD-PARTY COMPONENTS ARE PROVIDED “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. POGOMD DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AND THIRD-PARTY COMPONENTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE SERVICES. POGOMD DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. YOU UNDERSTAND AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY POGOMD SHALL CREATE ANY ADDITIONAL POGOMD WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF POGOMD’S OBLIGATIONS HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL POGOMD BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE SERVICES OR DATA, OR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR ANY OTHER DAMAGES, INCLUDING DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA, LOSS OF UPLOADED DATA OR BUSINESS INTERRUPTION, ARISING OUT OF YOUR USE OR INABILITY TO USE THE SERVICES, EVEN IF POGOMD HAS BEEN ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE). IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF POGOMD FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE SUBSCRIPTION FEES PAID BY YOU TO POGOMD IN THE 12 CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING. IF THE SERVICES ARE PROVIDED TO YOU WITHOUT CHARGE, THEN POGOMD SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES. YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THESE TERMS AND POGOMD’S AGREEMENT TO PROVIDE YOU THE SERVICES, AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE FOREGOING TERMS MAY NOT APPLY TO YOU.
GENERAL LEGAL TERMS
Export; Terms of Service for Non-U.S. Residents. You shall not export the Services or any part thereof, directly or indirectly, to any country for which the United States requires an export license or other governmental approval. In particular, You acknowledge that the Services or any part thereof, may not be exported or re-exported to, or otherwise used in, any U.S.-embargoed countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons or Entity List. By using the Services, You represent and warrant that You are not located in any such country or on any such list.
Governing Law and Arbitration. These Terms shall be governed, construed and enforced in accordance with the laws of the State of California without reference to conflicts of law principles. The parties agree that the exclusive jurisdiction of any actions arising out of, relating to or in any way connected with these Terms, shall be in the state or federal courts, as applicable, located in the City of Newport Beach or the County of Orange, California. Any dispute, controversy or claim arising out of or relating to this Agreement, including the arbitrability of the matter or the formation, interpretation, scope, applicability, termination or breach thereof, shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures, or JAMS International Arbitration Rules, if the matter is deemed “international” within the meaning of that term as defined in the JAMS International Arbitration Rules. The arbitration shall be administered by JAMS, shall take place before a sole arbitrator and shall be conducted in Newport Beach, California. If the JAMS International Arbitration Rules apply, the language to be used in the arbitral proceedings will be English. Judgment upon the arbitral award may be entered by any court having jurisdiction. This section shall apply to and require arbitration of all disputes, controversies and claims, regardless of whether such disputes, controversies or claims concern a single individual, entity or other person, multiple individuals, entities or other persons, or classes of individuals, entities or other persons.
These Terms constitute the entire understanding of the parties and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter hereof. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms. If one or more of the provisions herein shall be held invalid, illegal or unenforceable in any respect, the validity, legality and enforcement of the remaining provisions shall not be affected or impaired. The failure to enforce or the waiver by either party of a default or breach of the other party shall not be considered to be a waiver of any subsequent default or breach. If You or PogoMD cannot perform its obligations under these Terms because of any act of God, accident, strike, court order, fire, riot, war, failure of third-party equipment or any other cause not within the affected party’s reasonable control and that could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing party will (1) promptly notify the other party, (2) take reasonable steps to resume performance as soon as possible, and (3) not be considered in breach during the duration of the Force Majeure Event. If a Force Majeure Event continues for 5 or more days, PogoMD may terminate Your subscription to the Services and these Terms by providing electronic notice to You. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. The following provisions shall survive termination or expiration of this Agreement: Your Account, Privacy and Security, Your Subscription, Your Conduct, PogoMD Property, Disclaimer of Warranties; Limitation of Liability; and General Legal Terms.
Updated March 2012