TERMS OF SERVICE
CARELOFT END USER TERMS OF SERVICE
Effective Date: March (10), 2013

BEFORE USING careLOFT's SERVICES PROVIDED VIA WWW.CARELOFT.COM AND/OR RELATED SERVICES OFFERED BY careLOFT THAT ARE SUBJECT TO THESE TERMS (SUCH, SERVICES, TOGETHER WITH ALL RELATED PAGES, CONTENT, PRODUCTS AND COMPONENTS, COLLECTIVELY, THE "SERVICE"), PLEASE READ THESE END USER TERMS OF SERVICE (THESE "TERMS"). THESE TERMS, TOGETHER WITH ANY OTHER AGREEMENTS ENTERED INTO BY THE PARTIES (INCLUDING careLOFT's BUSINESS ASSOCIATE AGREEMENT) (THE "BAA") AND OUR PRIVACY POLICY, FORM A BINDING AND EXECUTED WRITTEN AGREEMENT (THIS "AGREEMENT") BETWEEN THE ENTITY OR INDIVIDUAL SIGNING UP FOR OR OTHERWISE USING THE SERVICE ("USER") AND careLOFT, INC. ("careLOFT").

1. The Service. careLOFT will make the Service available to (a) User [and (b) individuals who are authorized by User to use the Service on behalf of the User and who have been supplied user identification and passwords by User (or by careLOFT at User's request), including employees, consultants, contractors, and agents of User ("Authorized Individuals").] careLOFT hereby grants the User a limited, non-exclusive right to access and use the Service, in each case during the subscription term selected and paid for by User accordance with this Agreement (the "Subscription Term"), subject to any other specific access rights and limitations set forth in the User registration form (the "Subscription"). User shall at all times ensure that its use does not exceed its Subscription limits, if any. User's Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by careLOFT with respect thereto).

2. Eligibility and Registration.

a. Acceptance of the Agreement. You acknowledge and agree that, by accessing or using the careLOFT Service, or by downloading, uploading or posting any content from or on our website or through the careLOFT Service, you are indicating that you have read, and that you understand and agree to be bound by, the Agreement. If you do not agree to the terms and conditions of this Agreement, then you have no right to access or use the Service.If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, "User", "you" and "your" will refer and apply to that company or other legal entity. careLOFT reserves the right to modify this Agreement at any time without prior notice to you. In the event you continue to use the Service after any changes to this Agreement are posted, you will be bound by such changes.

b. Registration. In order to access and use the careLOFT Service you must register and create an account with careLOFT. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. careLOFT reserves the right to suspend or terminate your account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. Your will be asked to create a password when you create your account. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your account, whether or not you have authorized such activities or actions. You will immediately notify careLOFT of any actual or suspected unauthorized use of your account.

3. User Conduct and Use.

a. User Data. User will retain all right, title and interest in and to all data, content, documents uploaded by User [and its Authorized Individuals] to the Service, including, without limitation patient notes and information, (collectively, "User Data"). careLOFT may access User Data uploaded by User: (i) to respond to service or technical problems; (ii) to monitor compliance with the Agreement; (iii) if there has been a violation of this Agreement; (iv) to assess or determine whether the Service is being properly implemented and configured for the service(s) purchased by User; (v) to provide the Service to User and its Authorized Individuals and/or (vi) otherwise as authorized by User. You acknowledge and agree that you are solely responsible for all User Data. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Data that you make available through the careLOFT Service or you have all rights, licenses, consents and releases that are necessary to grant to careLOFT the rights in such User Data, as contemplated under this Agreement and (ii) neither the User Data nor your posting, uploading, publication, submission or transmittal of the User Data or careLOFT's use of the User Data (or any portion thereof) on, through or by means of the careLOFT Service will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

b. Compliance. User is responsible for (i) all activities that occur with respect to the User account, (ii) its and its Users' use of the Service and compliance with this Agreement, and (iii) all User Data and other data uploaded, stored or accessible by User or its Users via or on the Service. User and its Users will comply with all applicable privacy, publicity, data protection, electronic communications, spam and other laws in connection with the use of the Service, including the Health Insurance Portability and Accountability Act.

c. Certain Restrictions. User [and its Authorized Individuals] will use the Service for authorized business purposes only as contemplated by this Agreement and will not:
  • tamper or interfere with the security of the Service or careLOFT's other User accounts;
  • attempt to probe, scan or test the vulnerability of the Service, breach the security or authentication measures of the Service without proper authorization or wilfully render any part of the Service unusable;
  • access data on the Service not intended for the User or log into a server or account on the Service that User is not authorized to access;
  • lease, distribute, (sub)license, sell or otherwise commercially exploit the Service, use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party, or make the Service (including any evaluation version) available to a third party other than as contemplated in this Agreement;
  • allow any third party that offers or provides services that are competitive with careLOFT's products or services to use or access the Service, use or access the Service to develop a product or service that is competitive with careLOFT's products or services or otherwise copy any ideas, features, functions or graphics of the Service;
  • reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Service, or modify or create a derivative work of the Service or any related documentation;
  • remove or obscure any product identification, proprietary, copyright or other notices contained in the Service or related documentation;
  • create any link to the Service or frame or mirror any content contained or accessible from the Service; or
  • disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Service (including benchmark tests).
d. Suspension. In the event of any breach or threatened breach of this Agreement by User or any Users (including non-payment of fees), without limiting careLOFT's other rights and remedies, careLOFT may immediately suspend User's access to the Service.

e. Links to Third Party Sites. The Service may contain links to third-party websites or resources (the "Third Party Sites"). You acknowledge and agree that careLOFT is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such Third Party Sites. Links to such websites or resources do not imply any endorsement by careLOFT of such Third party Sites or the content, products, or services available from such Third Party Sites. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products, or services on or available from such Third Party Sites.

4. Fees; Taxes. In connection with your use of the Service, you will be asked to provide customary billing information such as name, billing address and credit card information either to careLOFT or its third party payment processor. You agree to pay careLOFT for your use of the Service in accordance with this Agreement and you hereby authorize the collection of such amounts by charging the credit card provided by you, either directly by careLOFT or indirectly, via its third party online payment processor. If you are directed to provide your payment information to careLOFT's third party payment processor, you may be subject to terms and conditions governing use of that third party's service and that third party's personal information collection practices. Please review such terms and conditions and privacy policy before using the services. The entire Subscription Fee will be payable in advance. All Subscription Fees are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars. [Please note that your ability to use the Service pursuant to the annual subscription fees will automatically renew each year unless you notify careLOFT of your desire to terminate your use of the Service before the end of the current annual term. Consequently, you agree to pay careLOFT the subscription fees on an annual basis and you authorize careLOFT or its third party payment processors to charge your credit card on the twelve month anniversary of the date the subscription fees were initially paid by you to careLOFT for your use of the careLOFT services. You may cancel your use of Service by contacting careLOFT at 3187 Airway Ave. Bldg #C, Costa Mesa, CA 92626. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively "Taxes"). User will be solely responsible for payment of all Taxes, except for those taxes based on the income of careLOFT. User will not withhold any Taxes from any amounts due careLOFT. If careLOFT pays any such taxes on behalf of User, User will reimburse careLOFT for such payments

5. Proprietary Rights. careLOFT owns or has rights to all intellectual property rights in and to the Service (including all derivatives or improvements thereof). User shall not [and shall ensure that none of the Authorized Individuals] use the Service and/or any intellectual property owned by careLOFT and/or its licensors, except as expressly permitted by this Agreement. All suggestions, enhancements requests, feedback, recommendations or other input provided by User or any other party relating to the Service shall be owned by careLOFT, and User hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing assignment of rights. Any rights not expressly granted herein are reserved by careLOFT. All trademarks, service marks, logos, trade names and any other proprietary designations of careLOFT used herein are trademarks or registered trademarks of careLOFT. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

6. Term and Termination.

a. Term and Termination. This Agreement will be effective during the Subscription Term, unless earlier terminated as follows. This Agreement may only be terminated by a party upon written notice to the other party (i) if the other party breaches a material term of this Agreement that is uncured within thirty (30) days (or, in the case of non-payment, fifteen (15) days) after receipt of notice of such breach; (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (iii) immediately in the event of a material breach by the other party of Section 2 of these Terms. User will pay all fees owed to careLOFT that have accrued up until termination of this Agreement immediately upon such termination.

b. Effect of Termination. Upon any termination of this Agreement, User will immediately cease all use of and access to the Service and delete (or, at careLOFT's request, return) all related documentation, passwords and access codes and any other careLOFT Confidential Information in its possession. careLOFT will have no liability for any suspension or termination of User's access to the Service, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. [Upon written request by User made within thirty (30) days after termination, careLOFT will provide User with temporary access to the Service solely for User to retrieve its User Data, but not any other purpose. After such 30-day period, careLOFT will have no obligation to maintain or provide access to such User Data and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such User Data in its possession or control. Sections 3, 4, 5, 6, 7, 8 and 9 of these Terms will survive any termination or expiration of this Agreement.

7. Disclaimers. EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 6(a) AND 6(b), (I) THE SERVICE AND ALL OTHER careLOFT PRODUCTS AND SERVICES ARE PROVIDED ON A STRICTLY "AS IS" BASIS, AND (II) careLOFT, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY disclaims ANY AND ALL warranties, whether express, implied, STATUTORY OR otherwise, INCLUDING implied warranties of merchantability, TITLE, NON-INFRINGEMENT AND fitness for any purpose, IN EACH CASE to the maximum extent permitted by law. THE WARRANTIES CONTAINED IN SECTIONS 6(a) AND 6(b) are solely to and for the benefit of User and no other third party. careLOFT AND ITS LICENSORS do not warrant that (A) the functions contained in the Service will meet the User's requirements, (B) the operation of the Service will be TIMELY, SECURE, uninterrupted or error-free, (C) ANY errors in the Service can or will be corrected, (D) THE SERVICE OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF the USE THEREOF WILL MEET USER'S REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS. careLOFT AND ITS LICENSORS will not be liable or responsible for any delays, interruptions, DELIVERY OR service failures, OR any other problems OR DAMAGES arising from User's use of the Internet, electronic communications or any other systems.

8. Limitations of Liability. IN NO EVENT WILL CARELOFT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS, PROFITS, DOCUMENTS OR INFORMATION; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND IT'S REASONABLE CONTROL, EVEN IF CARELOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY USER IN THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION AROSE.

9. Indemnification. You agree to defend, indemnify, and hold careLOFT, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Serviced and/or your violation of this Agreement.

10. General Provisions.

a. Entire Agreement; Interpretation. This Agreement constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to User's Subscription to the Service and supersedes all prior agreements and discussions with respect thereto.. Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement. For purposes hereof, "including" means "including without limitation".

b. Relationship of User and careLOFT. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.

c. Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.

d. Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party, except that careLOFT may assign this Agreement without the consent of User to a corporation or other business entity succeeding to all or substantially all of the assets or business of careLOFT to which this Agreement relates, whether by merger or purchase.

e. Governing Law. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of the [State of California, USA,] without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state and federal courts located in [Orange County, CA. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

f. Notices. careLOFT may give notice applicable to its general Services User base by means of a general notice on the Services website, and notices specific to User by electronic mail to User's e-mail address on record in careLOFT's account information or by written communication sent by first class mail or pre-paid post to careLOFT's address on record in careLOFT's account information. If User has a dispute with careLOFT, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, User shall promptly send written notice to careLOFT at 3187 Airway Ave. Bldg. C, Costa Mesa, CA 92626.

g. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.

h. Force Majeure. Neither party to this Agreement will be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.

i. Subcontractors. careLOFT may use the services of subcontractors for the provision of any Service and performance of any services under this Agreement.

j. Contacting careLOFT. If you have any questions about this Agreement please contact us at: info@careloft.com or 877-513-0545.