Terms of Service
These Terms of Service govern your access to and use of the website located at www.rhinogram.com or any subdomain thereof (the “Website”), the applications made available by Rhinogram (the “Rhinogram Apps” and collectively with the Website, the “Rhinogram Sites”) and the services (the “Services”) offered by Rhinogram through the Rhinogram Sites or otherwise. You acknowledge that you have read and understand, and agree to be bound by, these Terms of Service. If you do not agree to these Terms of Service, do not accept or agree to be legally bound to these Terms of Service or access or use any of the Rhinogram Sites or the Services.
These Terms of Service, together with the Rhinogram Service Order Form (the “Order Form”), any agreements, service order, purchase orders and other documents incorporated herein by reference or otherwise entered into between Client and Rhinogram in connection with the Services (collectively, these “Terms of Service”), govern the use and access to the Rhinogram Sites and the Services. “Rhinogram” means Rhinogram, LLC, a Tennessee limited liability company. “You” or “Client” means the individual or entity that accepts or agrees to be legally bound by these Terms of Service or is using or accessing the Rhinogram Sites and the Services. These Terms of Service shall become legally binding upon your acceptance hereof or agreement to be legally bound hereby (including upon the execution of an Order Form) (the “Effective Date“).
You represent and warrant that you are over the age of 18 and have the capacity and authority to accept and agree to be legally bound by these Terms of Service. If the undersigned represents an entity, the undersigned represents and warrants that the undersigned has the legal power and authority necessary to accept and agree to be legally bound by these Terms of Service on behalf of such entity. If the undersigned does not have actual power and authority to legally bind such entity, the undersigned is and shall be personally liable under these Terms of Service and agrees to indemnify Rhinogram with respect to any claims, losses, expenses (including, without limitation, reasonable legal fees and expenses) or other damages (collectively, “Damages”) arising or resulting therefrom. Rhinogram shall not have any liability for any Damages arising or resulting from reliance on any representation, warranty, agreement, instruction, notice or communication received from you, whether on your own behalf or on behalf of such entity.
1.1. Delivery of Services. Delivery of the Services shall be deemed completed at such time that the Client has been provided login credentials and is able to independently access the Rhinogram Sites or the Services.
1.2. Acceptance of Services. After delivery of the Services, Client shall have five (5) business days to inspect and test the configuration of the Services to determine if it substantially conforms to the requirements of the specifications identified by the Client. Client will notify Rhinogram in writing of any deviations within such five (5) day period. Should Client fail to provide a notice of deviation within such time frame, the Services shall be deemed accepted by, and in compliance with the configuration criteria identified by, the Client. Upon receipt by Rhinogram of notice of any such deviations, Rhinogram shall make reasonable efforts to rectify said deviation (s), when possible, and the Services shall be deemed accepted by, and in compliance with the configuration criteria, when the Client is able to independently access the Rhinogram Sites or the Services. In either case, the foregoing may be referred to as the “Acceptance."
2. USE OF THE SERVICES.
2.1. Rhinogram Services. Subject to payment of the applicable subscription, license and/or other fees identified in the Order Form and Client’s full and ongoing compliance with the terms and conditions of these Terms of Service, Rhinogram grants to Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable authorization for Client’s authorized user(s) to access and use the Services solely for Client’s own dental or medical practice. To the extent that Rhinogram makes the Services available for direct integration with Client’s web properties, Rhinogram grants to Client a personal, limited, revocable, non-transferable, non-sublicensable right to such integration without modification into those web properties that are owned or controlled by Client solely for such purpose.
2.2 Client Responsibilities. Client shall not allow any unauthorized access to or use of the Rhinogram Sites or the Services (including, without limitation, by maintaining the confidentiality of all usernames, passwords, API keys, and similar access credentials). Client will be solely liable to Rhinogram for any and all activity or use of the Rhinogram Sites or the Services. Client will notify Rhinogram promptly of any unauthorized access or use thereof. Client will use the Rhinogram Services only in accordance with these Terms of Service, the user guide made available by Rhinogram (as may be amended from time to time by Rhinogram), applicable privacy policies, applicable laws, government regulations, and third-party contracts, including without limitation, any and all laws, regulations, and obligations relating to licensed medical services, privacy, publication, consumer protection, advertising, and industry self-regulatory guidelines or similar industry agreements or arrangements, including without limitation with the Health Insurance Portability and Accountability Act of 1996, as amended, with respect to, all information, content, medical records, images (including scans and x-rays), communications, comments, links and other materials transmitted through the Rhinogram Sites or the Services. Client shall not (i) sell, resell, rent or lease the Services, or make the Services available to any third party on a service bureau basis, (ii) use the Services to store or transmit malicious code, (iii) interfere with or disrupt the integrity or performance of the Rhinogram Sites or the Services or third-party data contained therein, or (iv) attempt to gain unauthorized access to the Services or their related systems or networks. Client is responsible for moderating and controlling the content displayed as part of the Services. Client will maintain industry standard organizational and technical safeguards for end user data accessed or collected by Client through the Rhinogram Services. If Client requires the use of proprietary assets (e.g. fonts, images, videos, etc.), Client will provide Rhinogram with an appropriate license for such proprietary asset, or alternatively Rhinogram will directly procure a license for such proprietary asset and invoice Client (at cost) for such license. RHINOGRAM EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY CLIENT PROVIDED CONTENT, OR ANY COMPLIANCE WITH LAWS OR REGULATIONS GOVERNING HEALTH CARE OR HEALTH PROVIDERS. THE CONTENT, WHETHER SUCH CONTENT IS PROVIDED BY OR THROUGH THE USE OF THE SERVICES OR THROUGH ANY OTHER COMMUNICATIONS FROM RHINOGRAM, IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. CLIENT’S OR ITS USERS’ USE OF THE CONTENT IS SOLELY AT CLIENT’S OWN RISK. NOTHING STATED OR POSTED ON THE RHINOGRAM SITES OR AVAILABLE THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE, DENTISTRY, NURSING, OR OTHER PROFESSIONAL HEALTH CARE ADVICE OF RHINOGRAM, OR THE PROVISION OF MEDICAL CARE BY RHINOGRAM.
2.3. Usage Limitations. The Services may be subject to other limitations and/or documentation as outlined in the Order Form and such limitations shall be deemed to be incorporated by reference into and made a part of these Terms of Service. Client will abide by any such limitations and Client will not attempt to exceed or circumvent such limitations. If Client exceeds, or Rhinogram reasonably believes that Client has circumvented any limitations, then Client’s ability to use the Services may be temporarily or permanently blocked or suspended. Client may also be subject to additional charges.
2.4. Support Services. If Client purchased the Services from Rhinogram, Rhinogram will provide basic support services to Client, to address reported incidents of the Services not performing materially in accordance with applicable specifications, when used by Client in accordance with these Terms of Service and all applicable documentation in accordance with Rhinogram’s standard support procedures.
3. PAYMENT AND FEES.
3.1. Fees. Client will pay Rhinogram the then applicable fees described in the Order Form in accordance with the terms therein and herein (the “Fees”). If Client’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees, Client shall be billed for such usage and Client agrees to pay the additional fees in the manner provided herein. Rhinogram reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term (as set forth in the Order Form) or then current renewal term, upon thirty (30) days prior written notice to Client, which may be sent by email or through other similar mechanism(s). If Client believes that Rhinogram has billed Client incorrectly, Client must contact Rhinogram no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Rhinogram’s customer success department at firstname.lastname@example.org.
3.2 Implementation & Training. All Implementation & Training Fees (as defined and set forth in the Order Form) are payable at the time of acceptance or agreements to be legally bound by of these Terms of Service. No implementation or training will commence until the Implementation & Training Fees have been received by Rhinogram.
3.3 Payment Dates. Client or its authorized agent will be responsible for entering Credit Card information directly into the Rhinogram Site within eight (8) business days of receiving login credentials. The initial Monthly Fee (as defined in the Order Form) or annual prepayment fee will be due upon Acceptance of the Services configuration (as set forth in Section 1.2). For Clients paying Monthly Fees, recurring Monthly Fees will be charged to the credit card on file the same day each month as the initial Monthly Fee for the full term set forth in the Order Form (i.e. if there is an Acceptance on the 15th of the month and the initial Monthly Fee is charged, all subsequent Monthly Fees will be charged on the “15th” of each month for the remainder of the term set forth in the Order Form). For Clients electing annual subscription fees, the annual recurring fee will be charged to the credit card on file annually the same day the initial annual fee was paid.
3.4 Declined Cards. If the credit card on file is declined, Rhinogram will provide notice to the Client and the Client will have five (5) business days to supply a new form of payment or update the credit card information from within the Rhinogram Site. The Rhinogram Site serves as a conduit for directing the Client’s payment information to the payment card/clearing house site where Client will enter its payment information. The credit card information will not be stored, accessed or processed by Rhinogram staff/app/services. Proper tokenization processes performed by the credit card clearing house/processor will address the security of recurring monthly charges against Client’s card.
4. THIRD-PARTY SERVICES.
The Services may contain features designed to interoperate with third-party applications, products or services (such as cloud-based services, web platforms, storage, and analytical services) (collectively “Third-Party Services”). To use such features, Client may be required to obtain access to such Third-Party Services, or Rhinogram may be required to obtain access to such Third-Party Services on behalf of Client, from the providers of such Third-Party Services, and Client agrees to the terms and conditions on which such Third-Party Services are provided. If Client chooses to use such features and Rhinogram is required to obtain access to Third-Party Services on behalf of Client, Client authorizes Rhinogram to access the applicable Third-Party Services on Client’s behalf and obtain, access, store, and use the data made available to Rhinogram through the Third-Party Services in accordance with these Terms of Service. Client is solely responsible for its compliance with the terms and conditions applicable to any Third-Party Services accessed by or on behalf of Client in connection with the Services and will indemnify Rhinogram from any and all Damages incurred by Rhinogram in connection with a breach of the foregoing. Rhinogram shall not be responsible for any disclosure, modification or deletion of data resulting from any such access to such Third-Party Services and their providers. If the provider of any such Third-Party Service ceases to make the application available for interoperation with the corresponding feature of the Services on reasonable terms, Rhinogram may cease providing such features without entitling Client to any refund, credit, or other compensation. Any acquisition or use of Third-Party Services and any exchange of information between an end user and any third party is directly between the end users and the applicable third party, and any interaction between Client and end users is solely between Client and the end user. RHINOGRAM EXPRESSLY DISCLAIMS RESPONSIBILITY AND LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING IN CONNECTION WITH OR RELATING TO ANY END USER INTERACTIONS WITH THE RHINOGRAM SERVICES OR ANY THIRD-PARTY SERVICES.
5. PROPRIETARY RIGHTS.
5.1. Reservation of Rights. Rhinogram reserves all right, title and interest in and to the Rhinogram Sites and the Services, including all intellectual property rights. No rights are granted to Client other than as expressly set forth herein, whether by implication, estoppel, or otherwise. All enhancements, modifications, and derivative works made to the Rhinogram Sites or the Services (collectively, the “Derivatives”), and all intellectual property rights therein, shall be owned by Rhinogram, whether or not such Derivatives are made at Client’s request or instruction, with the exception of any electronic data or information submitted, provided, or made available to Rhinogram by or on behalf of Client through the Rhinogram Sites or the Services (“Client Data”) contained in the Derivatives which shall continue to be owned by Client. Client hereby irrevocably assigns to Rhinogram all right, title and interest in and to the Derivatives, including all intellectual property rights therein, that may inure to Client or that Client is deemed to obtain pursuant to these Terms of Service.
5.2. Restrictions. Client shall not (i) modify or create derivative works based on the Rhinogram Sites or the Services, (ii) reverse engineer the Rhinogram Sites or the Services, or (iii) access the Rhinogram Sites or the Services in order to (a) build a similar or competitive product or service to the Rhinogram Sites or the Services or the Third-Party Services, (b) carry out benchmarking of the Services, including by monitoring their availability, performance or functionality, or (c) copy any features, functions or graphics of the Rhinogram Sites or the Services.
5.3. Client Data. As between the parties, Client owns the Client Data, and hereby grants Rhinogram a non-exclusive, royalty-free right to access and use Client Data (i) as may be reasonably necessary in connection with performing, providing, developing, enhancing, supporting, and maintaining the Services; and (ii) in connection with the creation of any information or data derived from Client Data or Client’s or its end users’ use of the Services (including, without limitation, metrics and analytics related to such use), which is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person, including as may be required to develop, deliver and provide ongoing innovation to the Services.
5.4. Suggestions. Client may, but is not obligated to, provide suggestions, enhancement requests, recommendations or other feedback provided by Client (“Suggestions“). Client hereby grants Rhinogram a royalty-free, worldwide, irrevocable, sublicensable, transferable, perpetual license to use, disclose, reproduce, license, distribute and exploit such Suggestions, and incorporate Suggestions into the Rhinogram Sites or the Services and its other services, products, technologies, documentation or other development with no obligation to pay, attribute, license or to make available to, Client or any other person or entity.
6. LIMITED WARRANTY; DISCLAIMER.
6.1. Limited Warranty. Each party represents and warrants to the other party that it has validly entered into these Terms of Service and has the legal power to do so, and that it will comply with all applicable laws and regulations in connection with its performance. Client’s sole remedy for performance issues with respect to the Rhinogram Sites or the Services shall be any support services Rhinogram is obligated to provide in accordance with these Terms of Service.
6.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RHINOGRAM, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, MEMBERS, OWNERS, EMPLOYEES, AGENTS, CONTRACTORS AND OTHER REPRESENTATIVES (THE “RHINOGRAM PARTIES”) PROVIDE THE RHINOGRAM SITES AND THE SERVICES “AS-IS” AND MAKE NO WARRANTIES OF ANY KIND REGARDING THE RHINOGRAM SITES, THE SERVICES OR OTHERWISE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH OF THE RHINOGRAM PARTIES SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION: THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, THAT THE USE OF THE SOFTWARE SERVICE OR THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE; OR WITH RESPECT TO ANY CLIENT DATA OR OTHER THIRD PARTY CONTENT THAT MAY BE ACCESSED, PROVIDED, OR MADE AVAILABLE; OR ANY THIRD PARTY SERVICES ACCESSED OR USED, IN CONNECTION WITH THE RHINOGRAM SITES OR THE SERVICES; AND HEREBY EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT THERETO. RHINOGRAM WILL NOT BE LIABLE TO CLIENT FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF RHINOGRAM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT STRICT LIABILITY OR OTHERWISE.
6.3 Limitation of Warranties. THE RHINOGRAM PARTIES DO NOT WARRANT THAT THE RHINOGRAM SITES OR THE SERVICES WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE RHINOGRAM SITES OR THE SERVICES WILL BE COMPATIBLE WITH ANY OTHER SOFTWARE, HARDWARE, OR OTHER MATERIALS, THAT CLIENT CONTENT CAN OR MAY BE DISPLAYED BY CLIENT, OR THAT THE RHINOGRAM SITES OR THE SERVICES OR THE SERVERS THAT MAKE THE RHINOGRAM SITES OR THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND THE RHINOGRAM PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT THERETO. CLIENT UNDERSTANDS AND AGREES THAT IF CLIENT USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS ANY THIRD-PARTY SERVICES OR CONTENT OR DATA THEREIN, IT IS AT CLIENT’S OWN DISCRETION AND RISK AND THAT CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CLIENT’S PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE RHINOGRAM SITES OR THE SERVICES. RHINOGRAM HAS NO CONTROL OVER ANY THIRD-PARTY SERVICES, AND THEREFORE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, LEGALITY, NATURE, AVAILABILITY, OR RELIABILITY OF THIRD-PARTY SERVICES AVAILABLE IN CONNECTION WITH THE SERVICES. RHINOGRAM PROVIDES ACCESS TO THIRD PARTY SERVICES TO CLIENT “AS-IS” AND ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK, REFERRAL, OR FEATURES ON THE RHINOGRAM SITES OR THE SERVICE TO THIRD PARTY SERVICES DOES NOT IMPLY RHINOGRAM AFFILIATION, ENDORSEMENT, OR ADOPTION OF THE THIRD-PARTY SERVICE OR ANY CONTENT OR DATA THEREIN. ACCESS AND USE OF THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION THE CONTENT, MATERIAL, PRODUCTS, AND SERVICES AVAILABLE ON OR THROUGH THIRD PARTY SERVICES AND IS SOLELY AT CLIENT’S OWN RISK. CLIENT IS SOLELY RESPONSIBLE FOR, AND THE RHINOGRAM PARTIES HEREBY EXPRESSLY DISCLAIM ANY LIABILITY WITH RESPECT TO, THE USE OR DISPLAY OF ANY HEALTH-RELATED DATA OR CLIENT DATA, AND COMPLIANCE WITH ANY REGULATORY OBLIGATIONS RELATED THERETO.
Client shall indemnify, defend and hold the Rhinogram Parties harmless from and against any Damages incurred or suffered by any of them with respect to any breach of any of Client’s representations, warranties or obligations hereunder or any act or omission by Client or any of its authorized users or other personnel that results in Damages. The Rhinogram Parties shall have the right to engage their own counsel in connection with such matters and shall notify Client promptly in writing of any such claim or suit against any of the Rhinogram Parties.
8. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY RHINOGRAM PARTIES’ AGGREGATE TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY RECEIVED BY RHINOGRAM WITH RESPECT TO CLIENT’S SUBSCRIPTION FOR THE SERVICES GIVING RISE TO THE APPLICABLE CLAIM DURING THE ONE (1) MONTH PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE.
9. TERM AND TERMINATION.
9.1. Term of Agreement. Subject to earlier termination as provided below, this Agreement will commence as of the Effective Date. The Initial Service Term, as specified in the Order Form, will commence at the time of Acceptance as outlined in Section 1.2 of these Terms of Service and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
9.2. Termination. Either party will have the right to terminate these Terms of Service if the other party breaches any material term or condition of these Terms of Service and fails to cure such breach within sixty (60) days after receipt of written notice of the same, except in the case of Client’s failure to pay fees, which must be cured within fifteen (15) days after receipt of written notice thereof from Rhinogram. Either party may also terminate this Agreement upon providing written notice to the other party if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing (iii) voluntarily for any reason with sixty (60) days written notice.
9.3 Effect of Termination. Upon the effective date of termination of these Terms of Service: (a) Client shall cease all use of the Rhinogram Sites and the Services, and Rhinogram may immediately cease providing Services. (b) if requested by Client within thirty (30) calendar days post termination, Rhinogram shall use reasonable efforts to assist Client in transferring Client’s data to Client or another service provider (such services to be subject to Rhinogram’s customary fees on a time and materials basis unless otherwise set forth in an Order Form); (c) any and all payment obligations of Client under these Terms of Service will continue to be due and payable up until the effective date of termination, and will be charged as set forth herein. For example, if a client provides written notice of intent to terminate on November 1 with a monthly recurring bill date on the 15th, then the client will be responsible for payment of November 15 and December 15 payments and will maintain access to Rhinogram until January 15.
9.4. Surviving Provisions. The following provisions shall survive any termination or expiration of these Terms of Service for any reason and shall remain in effect after any such termination or expiration: the first three paragraphs of these Terms of Service and Sections 2 through 11.
10. MODIFICATIONS TO THE TERMS OF SERVICE.
Rhinogram reserves the right, at its discretion, to change these Terms of Service on a going-forward basis at any time. Client should check these Terms of Service periodically for changes. In the event that a change to these Terms of Service materially modifies Client’s rights or obligations, Rhinogram will make reasonable efforts to notify Client of such change. Rhinogram may provide notice through a pop-up or banner within the Rhinogram Services, by sending an email to any address Client may have used to register for access, or through other similar mechanism. Additionally, if the changed Terms of Service materially modify Client’s rights or obligations, Rhinogram will make reasonable effort to notify the client of such changes. If Rhinogram requires Client’s acceptance of the changed Agreement, changes are effective only after Client’s acceptance. If Client does not accept the changed Terms of Service, Rhinogram may terminate Client’s access to and use of the Services. All other changes are effective upon the earlier of Client’s acceptance of the modified Terms of Service, Client’s use of the Rhinogram Services with actual knowledge of the change, or thirty (30) days following publication of the modified Terms of Service. Disputes arising under these Terms of Service will be resolved in accordance with these Terms of Service in effect at the time the dispute arose.
11. GENERAL PROVISIONS.
11.1. Relationship. The parties are independent contractors, and these Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship. Neither party shall take any action or permit any action to be taken on its behalf which purports to be done on behalf of or in the name of the other party and shall have no power or authority to bind the other party to assume or create any obligation or responsibility express or implied on the other party’s behalf or in its name, nor shall such party represent to anyone that it has such power or authority.
11.2. Notices. All notices under these Terms of Service shall be in writing and shall be delivered, for notices to Client, to the address set forth in Client’s registration information as provided for use of the Services, and for notices to Rhinogram, to Rhinogram, LLC, 2158 Northgate Park Lane, Chattanooga, TN, 37415, provided that Rhinogram may provide notices to Client via the email address provided at the time of registration or through other similar mechanism(s)
11.3. Waiver and Severability. No failure or delay by either party in exercising any right under these Terms of Service shall constitute a waiver of that right. If any provision of these Terms of Service is held by a court of competent jurisdiction to be contrary to law, the provision shall be interpreted to affect the original intent to the fullest extent possible, if at all, and the remaining provisions of these Terms of Service shall remain in full force and effect.
11.4. Assignment. Client may not assign any of its rights or obligations hereunder without the prior express written consent of Rhinogram. Rhinogram may assign these Terms of Service together with all rights and obligations hereunder, without restriction, including to a successor entity resulting from a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to these Terms of Service. Any attempt by a party to assign its rights or obligations under these Terms of Service in breach of this section shall be void and of no effect. Subject to the foregoing, these Terms of Service shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.5. Governing Law. These Terms of Service shall be governed by and construed in accordance with the laws of the laws of the State of Tennessee without application of conflicts of laws rules or principles. Any dispute relating to the terms, interpretation or performance of these Terms of Service (other than claims for injunctive relief or other equitable remedies) will be submitted at the request of either party to binding arbitration. Arbitration will be conducted in Chattanooga, TN under the rules and procedures of JAMS. The parties will request that JAMS appoint a single arbitrator. Any claims for injunctive or other equitable relief shall be brought and heard in the state or federal courts located in Chattanooga, TN and Client consents to such venue and personal jurisdiction therein for any such proceedings. CLIENT HEREBY IRREVOCABLY WAIVES THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM CLIENT MAY HAVE AGAINST RHINOGRAM INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. In the event any provision of these Terms of Service is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of these Terms of Service will remain in full force and effect. The waiver of any breach or default of these Terms of Service will not be valid unless given in writing signed by the party giving the waiver and shall not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving party. As used herein, “affiliate” means any person or entity directly or indirectly controlling or having the power to control, or controlled by or being under common control with another person or entity. For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of such party, whether through ownership or stock or other securities, by contract or otherwise. Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists. A printed version of these Terms of Service and of any notice given in electronic form shall be admissible in any legal proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
11.6. Force Majeure. Except for Client’s payment obligations hereunder, neither party will be liable for any failure or delay in its performance under these Terms of Service due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, storms or other weather or natural events, embargo, riot, sabotage, terrorism, epidemic, pandemic, labor shortage or dispute or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, governmental act or failure of the Internet, provided that the delayed party: (i) gives the other party prompt notice of such cause, and (ii) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
11.7. Integration. These Terms of Service as may be modified from time to time as set forth herein, as well as other documents or additional terms referenced herein, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of these Terms of Service, including without limitation, any foreign language translation of this Agreement.
Last modified: November 26, 2018