ACS’ INR Clinic Web-Based Portal
Subscriber Responsibility for Independent Medical Judgment
You acknowledge and agree that the use of ACS’ INR Clinic, including use of your self-test data delivered through the Web Portal Service via fax to any clinic, lab, or physician for any purpose related to patient care cannot be controlled by ACS. You acknowledge and agree that ACS is in no way responsible for any pharmacological, medical, legal or similar information contained in, entered into, or used in connection with the ACS’ INR Clinic, including information entered by you through the Portal Service. Your prescribing physician, and not ACS, shall be solely responsible and liable for your treatment and care, including all responsibility for personal or psychological injury or loss of life.
ACS is the sole owner of all rights and development in and to ACS’ INR Clinic and the Web Portal Service, and the ideas, procedures, processes, systems, methods of operation, and no such right, title or interest shall pass to any Patient Self-Tester. The license granted hereunder is not a sale of a copy of any component of ACS’ INR Clinic or the Portal Service, and does not render you the owner of a copy of such products. Ownership of ACS’ INR Clinic and the Web Portal Service and all components thereof shall at all times remain with ACS.
All content (including without limitation all text, designs, graphics and illustrations and all associated HTML, Java scripts and all other code) contained in ACS’ INR Clinic and the Web Portal Service is owned by ACS. You shall not copy, publish, make any derivative use of, assign, transfer, duplicate, re-transmit or distribute any such content, including content provided by third party licensors, except as expressly authorized under the Agreement.
ACS reserves the right to terminate your access to the Web Portal Service at any time in its sole discretion. Upon termination or expiration of your course of treatment by your clinic or other Subscriber, or at the direction of such Subscriber at any time, you will discontinue all use of the Web Portal Service.
Warranty, Indemnification, Limits of Liability
Provided that the patient has paid all copays due under the Agreement, ACS warrants to you that the Web Portal Service will perform the functions described in the relevant user documentation and in the Site when properly accessed and used in accordance with the Agreement and such documentation.
THE WEB PORTAL SERVICE IS PROVIDED TO YOU “AS IS.” OTHER THAN AS EXPRESSLY SET FORTH HEREIN, ACS EXPRESSLY DISCLAIMS, AND YOU HEREBY EXPRESSLY WAIVE, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES AS TO ANY RESULTS TO BE OBTAINED FROM ACS’ INR CLINIC OR ANY USE OF THIRD-PARTY SOFTWARE OR INFORMATION OR RESULTS DERIVED THEREFROM. ACS DOES NOT WARRANT ACCESS TO THE PORTAL SERVICE OR THAT ACCESS TO THE PORTAL SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
YOU MAY USE CERTAIN THIRD-PARTY SOFTWARE (INCLUDING WEB BROWSERS) OR HARDWARE IN CONNECTION WITH ACCESSING THE PORTAL SERVICE. ACS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF SUCH THIRD-PARTY SOFTWARE OR HARDWARE. THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE AND SUITABILITY OF SUCH THIRD-PARTY SOFTWARE OR HARDWARE LIE SOLELY WITH YOU AND THE VENDOR OR SUPPLIER OF SUCH THIRD-PARTY SOFTWARE OR EQUIPMENT, AS THE CASE MAY BE.
You will, at your own expense, indemnify and promptly reimburse ACS for the defense of, and hold harmless ACS and its officers, directors, employees and agents, from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including reasonable attorneys’ fees and disbursements) resulting from or pertaining to any third-party claim relating to: (i) the use or operation of the Web Portal Service or Third-Party Software (unless solely due to a defect in the Web Portal Service); or (ii) any patient self-test data or other materials or content submitted, posted to or transmitted through the Portal Service by you. Patient further agrees to cooperate as reasonably required in the defense of any such claims. ACS reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You shall not in any event settle any such claim or matter without the written consent of ACS.
ACS will, at its own expense, indemnify, defend, and hold you harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including reasonable attorneys’ fees and disbursements) resulting from or pertaining to any third-party claim (i) challenging ACS’s ownership, or right to sublicense any third-party component, of the Web Portal Service, or (ii) alleging infringement by any component of the Web Portal Service, excluding third-party software, of any copyright, U.S. patent, trademark, Web Portal Service mark or trade secret rights. ACS’s indemnification obligation under this Section will not apply to claims arising from: (i) your use of the Web Portal Service outside the scope of the License; (ii) any infringement caused by use of third-party materials in combination with the Web Portal Service; (iii) any third-party claim not promptly reported to ACS; (iv) any modifications to the Web Portal Service made by any party other than ACS or a party acting at ACS’s express direction; and (v) claimed infringement of any right in which you have any ownership or interest (by license or otherwise). This Section sets forth your sole remedy and the ACS’s entire obligation with respect to third party claims of infringement or misappropriation or other violation of intellectual property rights.
EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS, ACS SHALL HAVE NO LIABILITY TO YOU WITH RESPECT TO YOUR USE OF THE PORTAL SERVICE OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.
ACS SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RELATING TO ACTS OR OMISSIONS OF ANY PROVIDER OF ONLINE ACCESS OR OTHER SERVICES TO YOU RELATING TO YOUR ACCESS TO AND USE OF ACS’ INR CLINIC HEREUNDER. ACS’ SOLE AND AGGREGATE LIABILITY FOR ANY CLAIMS OF ANY NATURE HOWSOEVER ARISING OUT OF OR UNDER OR IN CONNECTION WITH YOUR USE OF THE WEB PORTAL SERVICE AND/OR ACS’ INR CLINIC SHALL IN NO EVENT EXCEED THE AMOUNT OF THE FEES PAID BY YOU TO ACS.