YOU (“SUBCRIBER”) MUST ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS INCLUDED IN THIS AGREEMENT, AS PROVIDED IN SECTION 1 BELOW, WHICH SHALL GOVERN SUBSCRIBER’S USE OF APPOINTYOU’S ONLINE MARKETING CAMPAIGN SERVICE APPLICATIONS ("SERVICE"). IF SUBSCRIBER DOES NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, SUBSCRIBER MUST SELECT THE "I DECLINE" BUTTON, IN WHICH CASE SUBSCRIBER WILL NOT BE GRANTED ACCESS TO THE SERVICE AND MAY NOT USE THE SERVICE. FOR REFERENCE, A DEFINITIONS SECTION IS INCLUDED AT THE END OF THIS AGREEMENT.

 

Subject to the terms and conditions of this Agreement and any and all terms and conditions posted on the AppointYou website (collectively, the “Terms and Conditions”), including but not limited to AppointYou’s Privacy and Security Policy incorporated herein by reference, AppointYou hereby authorizes Subscriber, on a non-exclusive basis, to access and use the Service only during the term for which Subscriber enrolled at the AppointYou website and only for as long as such enrollment remains paid and active.

 

This Agreement shall commence upon Subscriber’s completion of product configuration at the enrollment page of the AppointYou website and continue in effect for the duration of the enrollment term selected by Subscriber (“Enrollment Term”).  Unless notification is received by AppointYou from Subscriber prior to expiration of the Enrollment term, this Agreement shall automatically renew for an additional Enrollment Term. Notwithstanding the foregoing, AppointYou may terminate this Agreement immediately and without advance notice if Subscriber fails to make timely payment of fees due AppointYou or otherwise breaches any of the Terms and Conditions.  Upon termination or expiration of this Agreement for any reason Subscriber will not be granted any further access to the Service and will have no further authority to access or use the Service. The provisions of Sections 8, 9, 10, 11, 12, 13, 18 and 19 shall survive the termination or expiration of this Agreement.

 

AppointYou hereby grants Subscriber, for the term of this Agreement, a non-exclusive, non-transferable, limited license to display, online, any works of authorship used in connection with the Service, only to the extent that such display is necessary to use the Service for its intended purpose and only as part of Subscriber’s authorized use of the Service pursuant to the Terms and Conditions.

 

All rights not expressly granted to Subscriber under this Agreement are reserved by AppointYou and its licensors. Subscriber may use the Service only in connection with the performance of the Sevice and term for which Subscriber enrolled at the AppointYou website and only for as long as Subscriber’s enrollment remains current and active.  Subscriber may not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; (iv) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including, without limitation, material harmful to children or violative of third party privacy rights; (vi) use the Service to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (viii) attempt to gain unauthorized access to the Service or its related systems or networks; or (ix) use the Service to perform, or in connection with the performance of, any unlawful act, or in any manner for which it was not intended.

 

Subscriber acknowledges and agrees that any identification and/or password issued to Subscriber by AppointYou in connection with the use of the Service (collectively, the “Passwords”) shall be used only by Subscriber in accordance with the Terms and Conditions and Subscriber shall not disclose Subscriber’s Passwords to any third party or allow any third party to use Subscriber’s Passwords to access or otherwise use the Service. Subscriber shall: (i) notify AppointYou immediately of any unauthorized use of any Password or account or any other known or suspected breach of security; and (iii) report to AppointYou immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Subscriber.

 

AppointYou does not own any patient data or other information or material that you submit to the Service in the course of using the Service ("Subscriber Data") and shall not have or possess any right or entitlement in the Subscriber Data other than for purposes of performing the Service during the Enrollment Term. The Subscriber Data shall be the proprietary property of Subscriber or other third party. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of such Subscriber Data. Subscriber acknowledges and agrees that AppointYou shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Subscriber Data.  Upon termination of this Agreement, AppointYou shall have no obligation to maintain or forward any Subscriber Data and may delete Subscriber Data from its servers.

 

AppointYou and/or its licensors own all right, title and interest, including all Intellectual Property Rights, in and to the AppointYou Technology, Content, the Service, and custom templates (“Custom Templates”) developed by AppointYou for Subscriber marketing campaigns.  The AppointYou name, the AppointYou logo, and the product names associated with the Service are trademarks of AppointYou or third parties, and no right or license is granted to use them.

 

Each party represents and warrants that it has the legal power and authority to enter into this Agreement.  Subscriber represents and warrants that: (i) it has not falsely identified itself nor provided any false information to gain access to the Service; and (ii) will use the Service only in connection with the particular services and term for which Subscriber enrolled at the AppointYou website and only for as long as Subscriber’s enrollment remains current and active.

 

Subscriber shall defend, indemnify and hold AppointYou, and its employees, representatives and agents, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim of a third party that AppointYou’s hosting or use of Subscriber Data infringes an intellectual property right or other proprietary right held by such third party; or (ii) a claim arising from the breach by Subscriber of the Terms and Conditions of this Agreement.

 

APPOINTYOU AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT.  APPOINTYOU AND ITS LICENSORS DO NOT REPRESENT OR WARRANT, AND HEREBY DISCLAIM ALL WARRANTIES TO THE EFFECT THAT (A) USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS, OR (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE.  THE SERVICE AND ALL CONTENT IS PROVIDED TO SUBSCRIBER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY APPOINTYOU AND ITS LICENSORS.

 

THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, INTERRUPTIONS, FAILURES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  APPOINTYOU IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LOSSES, CLAIMS OR LIABILITIES RESULTING FROM SUCH PROBLEMS.  FURTHER, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICE IS HOSTED BY THIRD PARTY PROVIDERS, AND THAT APPOINTYOU (A) MAY, AS A RESULT, NEED TO MAKE CHANGES REGARDING THE OPERATION OF THE SERVICE IN ORDER TO CONFORM WITH THE REQUIREMENTS, RESTRICTIONS AND/OR LIMITATIONS OF SUCH PROVIDERS, AND (B) SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LIMITATIONS, DELAYS, INTERRUPTIONS, FAILURES AND OTHER PROBLEMS CAUSED BY THE ACTS OR OMISSIONS OF SUCH PROVIDERS.  WITHOUT LIMITING THE FOREGOING, APPOINTYOU SHALL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE TO CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, EARTHQUAKES, LABOR DISPUTES, CHANGES IN LAW, REGULATION OR GOVERNMENT POLICY, RIOTS, WAR, FIRE, EPIDEMICS, ACTS OR OMISSIONS OF VENDORS OR SUPPLIERS, EQUIPMENT FAILURES, TRANSPORTATION DIFFICULTIES, OR ANY OTHER SUCH OCCURRENCES. 

 

IN NO EVENT SHALL APPOINTYOU’S AGGREGATE LIABILITY TO SUBSCRIBER EXCEED THE FEES PAID BY SUBSCRIBER FOR THE INITIAL ENROLLMENT TERM. IN NO EVENT SHALL APPOINTYOU AND/OR ITS LICENSORS AND THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF APPOINTYOU OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

 

Each party agrees that it will not use any Confidential Information disclosed to it by the other party, nor disclose such Confidential Information to any third party, unless, and other than as, expressly authorized or contemplated under this Agreement, and will take every reasonable precaution to protect the confidentiality of such information, with no less restrictive precautions than it takes to protect its own Confidential Information of like importance. 

 

If Subscriber uses the Service from outside the United States of America, Subscriber is solely responsible for compliance with all applicable laws, including without limitation, privacy, data protection, export and import laws and regulations of other countries.

 

AppointYou may give notice by means of a general notice on the Service, electronic mail to Subscriber’s e-mail address on record in AppointYou’s account information, or by written communication sent by first class mail or pre-paid post to Subscriber’s address on record in AppointYou’s account information.  Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).  Subscriber may give notice to AppointYou (such notice shall be deemed given when received by AppointYou) at any time by any of the following: letter sent by confirmed facsimile to AppointYou; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to AppointYou’s address: AppointYou, Inc., 26895 Aliso Creek Road, Suite B130, Aliso Viejo, CA 92656-5301995 (or such other address specified by AppointYou) addressed to the attention of: Chief Financial Officer.

 

AppointYou reserves the right to modify the Terms and Conditions, or any provisions thereof, or its policies relating to the Service, including, without limitation, its privacy and security policies, at any time, effective upon posting of an updated version of the same on the Service. Continued use of the Service after any such changes shall constitute Subscriber’s consent to such changes.

 

This Agreement may not be assigned by Subscriber without the prior written approval of AppointYou. AppointYou may assign its rights and delegate its obligations under this Agreement at its sole option and discretion, provided that any assignee of AppointYou shall assume all of AppointYou’ obligations hereunder.  This Agreement shall be binding upon and inure to the benefit of each party hereto and its permitted assigns. 

 

This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Orange County, California. Subscriber hereby irrevocably submit to the personal jurisdiction of such courts and irrevocably waive objection to the laying of venue (including the waiver of any argument of forum non conveniens or other principles of like effect) in Orange County. Subscriber further acknowledges and agrees that service of process by first class mail shall be legally effective.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.  No joint venture, partnership, employment, or agency relationship exists between you and AppointYou as a result of this Agreement or use of the Service.  The failure of AppointYou to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by AppointYou in writing. This Agreement, together with any other Terms and Conditions, comprises the entire agreement between Subscriber and AppointYou and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. 

 

As used in this Agreement:

"AppointYou" means AppointYou, Inc., a California corporation, having its principal place of business at 26895 Aliso Creek Road, Suite B130, Aliso Viejo, CA 92656-5301995;

"AppointYou Technology" means all of AppointYou’ or its licensors’ proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used by AppointYou in providing the Service;

“Confidential Information” means any information of a party disclosed to the other party in the course of this Agreement, which is identified as, or should be reasonably understood to be, confidential to the disclosing party, including, but not limited to Subscriber Data and Passwords and similar information disclosed as part of the Service. “Confidential Information” shall not include information which: (i) is known or becomes known to the recipient directly or indirectly from a third-party source other than one having an obligation of confidentiality to the providing party; (ii) is or becomes publicly available or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the recipient; or (iii) is or was independently developed by the recipient without use of or reference to the providing party’s Confidential Information, as shown by evidence in the recipient’s possession.

"Content" means any audio or visual content or information, including, without limitation, text, graphics, custom templates, pictures, photographs or sounds, contained in, or made available to Subscriber in the course of using, the Service;

"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

"Service(s)" means the specific version of AppointYou’s online marketing communications applications developed, operated, and maintained by AppointYou, accessible via http://www.AppointYou.com or another designated web site or IP address, or ancillary services rendered to you by AppointYou under this Agreement;

"Subscriber Data" means any patient data or other proprietary or personal information or material that you submit to the Service in the course of using the Service.

 

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@AppointYou.com.