Please read the following Terms carefully before using Ontellus’ Website, www.ontellus.com, including but not limited to the www.ontellus.com Website, as well as any online features, services and/or programs offered by Ontellus, or any of its subsidiary companies (including Keais Records Retrieval, LLC, Second Image National, LLC, AMFS Acquisition, LLC, LegalPartners, LP, National Document Services, LLC, Quest Discovery Services, Inc., R.S.P. Microfilming, LLC, and Aboingo Services, collectively, the “Website”). By accessing or using the Website, You agree to the following Terms. You should review these Terms regularly as they may change at any time at the sole discretion of Ontellus. If you do not agree to any portion of these Terms, You should not access or otherwise use the Website. “Content” refers to any text, materials, documents, images, graphics, logos, design, audio, video and any other information provided from or on, uploaded to and/or downloaded from the Website.
BY USING THE WEBSITE AND THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD, ARE A RESIDENT OF THE UNITED STATES, AND ARE OTHERWISE LEGALLY QUALIFIED TO ENTER INTO AND FORM CONTRACTS UNDER APPLICABLE LAW. If You are using the Website or Services on behalf of a company, You further represent and warrant that You are authorized to act and enter into contracts on behalf of that company. This Agreement is void where prohibited.
Ontellus provides comprehensive information services to the insurance and legal industries. Through a secure, proprietary, feature-rich online service, Ontellus distributes medical records to authorized parties, such as insurance companies, claims adjusters and law firms. Where applicable, selected Ontellus subsidiaries are Registered Professional Photocopiers (pursuant to the California Business and Professions Code §§ 22450-22463) and are responsible for maintaining the confidentiality of the information obtained through the Services. Accordingly, medical records are made available only to authorized parties.
Subject to Your compliance with the terms and conditions of this Agreement, Ontellus grants You a limited, non-exclusive, non-sublicensable, non-transferable license to use the Website and Services, including the right to display, copy, and download the medical records made available to You via the Website and Services. Except as expressly set forth herein, this Agreement grants You no rights in or to the intellectual property of Ontellus or any other party. In the event that You breach any provision of this Agreement, Your rights under this section will immediately terminate.
In connection with Your use of the Website and Services, You will be required to complete a registration form. You represent and warrant that all information You provide on any registration form or otherwise in connection with Your use of the Website or Services will be complete and accurate, and that You will maintain and promptly update that information as necessary to keep it complete and accurate.
You will also be asked to provide, or may be given, a user name and password in connection with Your use of the Website and Services. You authorize Ontellus to rely on your user name and password to identify you when you use the Website. You shall take all such actions as are necessary to maintain the confidentiality of, and to prevent the unauthorized use of, Your user name and password. You agree to notify Ontellus if you become aware of the unauthorized use of Your user name and password.
You may not use the account or password of any other Website or Services user. You agree to notify Ontellus immediately of any unauthorized use of Your account or password, including any use by former employees. Ontellus shall not be liable for any loss that You incur as a result of someone else using Your account or password, regardless of whether that use is with or without Your knowledge. You may be held liable for any losses incurred by Ontellus, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else's use of Your account or password, including use by former employees.
By establishing an account with Ontellus, You consent to receive periodic email communications from Ontellus concerning Ontellus' services and other matters.
You acknowledge that the Ontellus Website contains highly sensitive information, including third-party social security numbers and patient information, to which no one, other than intended recipients should have access. Accordingly, Ontellus imposes certain restrictions on Your use of the Website. You represent and warrant that You will not: (a) violate or attempt to violate any security features of the Website; (b) access content or data not intended for You, or log onto a server or account that You are not authorized to access; (c) distribute (including, without limitation, through email) the medical records made available to You via the Website; (d) attempt to probe, scan, or test the vulnerability of the Website, or any associated system or network, or breach any security or authentication measures without proper authorization; (e) interfere or attempt to interfere with the use of the Website or Services by any other user, host or network, including, without limitation by means of submitting a virus, overloading, "flooding," "spamming," "mail bombing," or "crashing" the Website or infrastructure that provides the Services. Any breach of this Section will result in the violation of the privacy rights of third-parties, and may subject You to civil and/or criminal liability. Ontellus will cooperate with law enforcement in any investigation of any violation of this or any other Section of this Agreement.
The trademarks, service marks and logos used and displayed on the Website are Ontellus’ or its subsidiaries’ or affiliates’ registered and unregistered trademarks. Ontellus is the copyright owner or authorized licensee of all text and all graphics contained on the Website. All trademarks and service marks of Ontellus that may be referred to on the Website are the property of Ontellus. Other parties’ trademarks and service marks that may be referred to on the Website are the property of their respective owners. Nothing on the Website should be construed as granting, by implication, estoppels or otherwise, any license or right to use any of Ontellus’ trademarks or service marks without Ontellus’ prior written permission. Ontellus aggressively enforces its intellectual property rights. Neither the name of Ontellus nor any of Ontellus’ other trademarks, service marks or copyrighted materials may be used in any way, including in any advertising, hyperlink, publicity or promotional materials of any kind, whether relating to the Website or otherwise, without Ontellus’ prior written permission, except that a third party website that desires to link to the Website. If you believe that any Content on the Website violates any intellectual property right of Yours, please contact Ontellus at the address, email or telephone number set forth on the Website.
(a) DISCLOSURE IN CONNECTION WITH SERVICES
WHERE DISCLOSURE IS NECESSARY FOR COMPLETING PAYMENTS, OR TO RESOLVE A PROBLEM RELATED TO A PAYMENT;
TO VERIFY THE CONDITION AND EXISTENCE OF YOUR ACCOUNT FOR A THIRD PARTY, SUCH AS A CREDIT BUREAU OR MERCHANT;
TO PERSONS AUTHORIZED BY LAW IN THE COURSE OF THEIR OFFICIAL DUTIES; TO COMPLY WITH A GOVERNMENT AGENCY OR COURT ORDER, SUCH AS A LAWFUL SUBPOENA;TO ONTELLUS EMPLOYEES, AUDITORS, SERVICE PROVIDERS, ATTORNEYS OR COLLECTION AGENTS IN THE COURSE OF THEIR DUTIES;
OR IF YOU GIVE ONTELLUS WRITTEN PERMISSION (INCLUDING BY EMAIL)
(b) NO WARRANTIES.
ONTELLUS, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES RELATING TO THE WEBSITE AND SERVICES. THE WEBSITE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT PERMITTED BY LAW, ONTELLUS, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE WEBSITE AND SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER ONTELLUS NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE WEBSITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER ONTELLUS NOR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY WHATSOEVER IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES. ADDITIONALLY, ONTELLUS HAS NOT AUTHORIZED ANYONE TO MAKE ANY WARRANTY OF ANY KIND ON ITS BEHALF, AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT BY ANY THIRD PARTY.
(c) YOUR RESPONSIBILITY FOR DAMAGE
YOU AGREE THAT YOUR USE OF THE WEBSITE AND SERVICES IS AT YOUR SOLE RISK. YOU WILL NOT HOLD ONTELLUS OR ITS LICENSORS OR SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY DAMAGE TO ANY OF YOUR COMPUTERS OR DATA. THE WEBSITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
(d) LIMITATION OF LIABILITY
THE LIABILITY OF ONTELLUS AND ITS LICENSORS AND SUPPLIERS IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ONTELLUS OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO ONTELLUS OR ITS LICENSORS AND SUPPLIERS) ARISING OUT OF OR RELATING TO YOUR USE OF THE WEBSITE OR SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF ONTELLUS AND ITS LICENSORS AND SUPPLIERS TO YOU UNDER ALL CIRCUMSTANCES WILL BE $250. YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ONTELLUS AND YOU. THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATION.
THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS DO NOT IN ANY WAY LIMIT ANY OTHER DISCLAIMER OF WARRANTIES OR ANY OTHER LIMITATIONS OF LIABILITY IN ANY OTHER AGREEMENT OR AGREEMENTS BETWEEN YOU AND ONTELLUS OR BETWEEN YOU AND ANY OF ONTELLUS' LICENSORS AND SUPPLIERS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. ONTELLUS'S LICENSORS AND SUPPLIERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS, WAIVERS AND LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE WEBSITE OR OTHERWISE SHALL ALTER ANY OF THE DISCLAIMERS OR LIMITATIONS STATED IN THIS SECTION.
You agree to defend, indemnify and hold harmless Ontellus and its officers, directors, employees, agents, affiliates, representatives, sublicensees, successors, assigns and contractors (collectively, the "Ontellus Parties") from and against any and all claims, actions, demands, causes of action and other proceedings (including reasonable attorneys' fees and costs) (collectively, "Claims"), arising out of or relating to: (i) your failure to comply with these Terms; (ii) your breach of your obligations under these Terms; (iii) your use of the rights granted hereunder, including without limitation any claims made by any third parties; and/or (iv) your violation of any third party right, including without limitation any copyright, property, or privacy right.
Ontellus makes no representation that content or materials in the Website are appropriate or available for use in jurisdictions outside the United States. Access to the Website from jurisdictions where such access is illegal is prohibited. If you choose to access the Website from other jurisdictions, you do so on your own initiative and are responsible for compliance with applicable local laws. Ontellus is not responsible for any violation of law. You may not use or export the Content or materials in the Website in violation of U.S. export laws and regulations. This Agreement, including without limitation its construction and enforcement, shall be treated as though it were executed and performed in Houston, Texas, and shall be governed by and construed in accordance with the laws of the State of Texas without regard to its conflict of law principles. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE WEBSITE MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER IT AROSE OR BE FOREVER WAIVED AND BARRED. THE PROPER VENUE FOR ANY JUDICIAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE WEBSITE WILL BE THE STATE AND FEDERAL COURTS IN LOS ANGELES, CALIFORNIA. THE PARTIES HEREBY STIPULATE TO, AND AGREE TO WAIVE ANY OBJECTION TO, THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS, AND FURTHER EXPRESSLY SUBMIT TO EXTRATERRITORIAL SERVICE OF PROCESS.
Either party may terminate this Agreement and its rights hereunder at any time, for any or no reason at all, by providing to the other party notice of its intention to do so. This Agreement shall automatically terminate in the event that You breach any of this Agreement's representations, warranties or covenants. Such termination shall be automatic, and shall not require any action by Ontellus. Upon termination, all rights and obligations created by this Agreement will terminate, except that Sections 9, 11-14, and 16 will survive any termination of this Agreement. For clarification, termination of this Agreement will not relieve You of Your obligation to pay any fees owed to Ontellus.
This Agreement constitutes the entire agreement between Ontellus and You concerning Your use of the Website and Services. This Agreement may only be modified by a written amendment signed by an authorized executive of Ontellus or by the unilateral amendment of this Agreement by Ontellus, as further specified in Section 3. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining provisions shall remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. This Agreement and all of Your rights and obligations thereunder will not be assignable or transferable by You without the prior written consent of Ontellus. Notwithstanding the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. You and Ontellus are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.