(Last updated: July 2009)
THE FOLLOWING TERMS OF SERVICE (THESE “TERMS OF SERVICE”) GOVERN YOUR ACCESS, INSTALLATION, USE OR REGISTRATION (“USE”) OF THE PRODUCTS (AS DEFINED BELOW) AND CONSTITUTE A LEGAL AGREEMENT BETWEEN PACSDRIVE, LLC (“PACSDRIVE”) AND YOU, ON BEHALF OF YOURSELF AND ANY ENTITY YOU REPRESENT IN SUCH USE (“YOU”).
Products
For purposes of these Terms of Service, “Products” means any or all of the following, as applicable: the PacsDrive software (whether preinstalled, on a medium, or offered by download) (the “Software”), PacsDrive services, PacsDrive websites (including, without limitation, www.pacsdrive.com) (collectively, the “Website”) and all other software, files, folders, content, features, tools, websites, documentation and services provided by PacsDrive.
To Use the Products You Must Agree to these Terms of Service
PLEASE READ THESE TERMS OF SERVICE BEFORE USING THE PRODUCTS. By using a Product, you agree to these Terms of Service. Each time you use a Product, you reaffirm your acceptance of the then-current Terms of Service. If you do not agree to these Terms of Service, please do not use the Products. If you do not wish to be bound by these Terms of Service, you may discontinue using the Products. You cannot use Products until you have accepted these Terms of Service. You represent and warrant that you have adequate legal capacity to enter into binding agreements such as these Terms of Service.
Acceptable Use
The Products are intended for general consumer use, which use must be in compliance with these Terms of Service, all applicable laws, rules and regulations and must not infringe or violate third party rights. You are solely responsible for your conduct and your data related to the Products. You may not make commercial use of the Products, including but not limited to selling or distributing the Products to any third party.
Except as otherwise expressly permitted in these Terms of Service, you may not: (a) reproduce or copy any of the Software; (b) modify or create any derivative works of the Software, including translation or localization; (c) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software; (d) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (f) without PacsDrive’s prior written consent (which may be given or withheld in PacsDrive’s sole discretion) enter into an agreement with a third party to use the Software on such third party’s behalf for the primary purpose of obviating the third party’s need to purchase Products itself; or (g) copy the printed materials accompanying the Software. As between you and PacsDrive, any changes to, modifications to, or derivative works of the Software shall become the exclusive property of PacsDrive.
You may access Products only through the interfaces and protocols provided or authorized by PacsDrive. You agree that you will not access Products through unauthorized means. You may not obtain the communications protocol for accessing the Products. PacsDrive may offer Products that limit the time, type of files, number of studies, storage space, or other features. You agree not to attempt to circumvent these limitations in any way. You also agree not to (a) introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of a third party’s computer or property or information; (b) use the Products in any manner that could damage, disable, overburden, or impair any PacsDrive server, or any network connected to any PacsDrive server or interfere with any other party’s use and enjoyment of the Products; or (c) attempt to gain unauthorized access to service, materials, other accounts, information, computer systems or networks connected to any PacsDrive server or to the Products, through hacking, password mining, or any other means.
License
The Products are licensed, not sold, and are available for use only under the terms of these Terms of Service. PacsDrive and its vendors grant you a personal, non-exclusive, non-transferable, revocable right, limited license to access and use the Products and to install one copy of the Software in object code form only on any single computer or device from which you wish to use the Software for the sole and exclusive purpose of using the Products in accordance with these Terms of Service. A single license for the Software does not allow you to share the Software or use it concurrently on different computers or for others.
Types of Accounts
PacsDrive offers different types of accounts with differing levels of storage. More information on the types of accounts that PacsDrive offers and the costs involved can be found
here. Please read these Terms of Service in their entirety regarding account restrictions. PacsDrive reserves the right, at any time, to change or impose fees for access to and use of the Website, Software or the PacsDrive Products.
Payment, Free Trial and Refund Policy
Your account will not be activated without credit card payment information. Incomplete, incorrect or questionable signup information can result in an account not being activated. Each account is given a 14-day free trial. Your account will not be charged during the free trial period. You may cancel your account without charge during the free trial period. Unless cancelled during the free trial period, your account will automatically be billed the monthly fee associated with the plan you selected at the end of the free trial period. Your account will be billed the monthly fee on the same day of each month thereafter until cancelled. All fees are due on or before the first day of each monthly billing period. Any losses or expenses experienced by you due to actions taken by PacsDrive in response to your non-payment are not the responsibility of PacsDrive. By purchasing the Products, you agree to allow PacsDrive to place your account on a recurring payment plan and charge your credit card for any and all Products you request and any renewals thereof. If PacsDrive is unable to process a payment for your plan by its due date, your account will be suspended for ten days or until payment is successfully processed. If an account has been suspended for non-payment, it will only be reactivated upon payment of all overdue fees. If PacsDrive is unable to process a payment for your plan within such 10-day period, your account will be immediately cancelled. After cancellation, you will have access to your account for 14 days to retrieve Patient Data, unless your account is cancelled during the free trial period or prior to your initial payment, in which case you will have no access after cancellation. After cancellation or your 14-day access period, if any, PacsDrive has no obligation provide you with a copy of your Patient Data and may remove and discard any backup data. It is a violation of these Terms of Service for you to misuse or fraudulently use credit and debit cards. A determination of such misuse or fraudulent use shall be at the sole discretion of PacsDrive. All fees paid for Products are paid in whole month increments and are non-refundable. If you do not wish to continue purchasing Products from PacsDrive, or do not wish to renew your account, it is your responsibility to cancel your account prior to your renewal date to avoid further charges. You are free to cancel your account at any time. Similarly, PacsDrive reserves the right to cancel any account at any time, for any or no reason. You have ninety (90) days to dispute any charge or payment processed by PacsDrive.
Equipment
You are responsible for obtaining your own Internet access, such as maintaining all telephone, computer hardware and other equipment needed to use the Products. Any charges incurred by you to access PacsDrive are your responsibility.
User Accounts and Passwords
When you register using the Website login registration, you will select a user ID and password. You are responsible for keeping your password secure and you are responsible for all activities that occur under your user ID. You agree to immediately notify PacsDrive of any unauthorized use of your user ID or password. If you lose your password, you may not be able to access your User Information.
Changes to the Products
PacsDrive occasionally will provide automatic upgrades to the Products to improve your PacsDrive experience, although these upgrades may not be consistent across all platform and devices. You agree to take no action to interfere with such automatic upgrades, scanning, and related services. PacsDrive has the right at any time to change, modify, add to or discontinue or retire any aspect or feature of the Products including, but not limited to, the software, hours of availability, equipment needed for access or use, the maximum disk space that will be allotted on PacsDrive servers on your behalf, or the availability of Products on any particular device or communications service. PacsDrive has no obligation to provide you with notice of any such changes.
Consent to Access Your Files
BY UTILIZING THE PRODUCTS, YOU CONSENT TO ALLOW PACSDRIVE TO ACCESS YOUR COMPUTER TO ACCESS ANY FILES THAT ARE TRANSFERRED TO THE SOFTWARE OR PLACED IN THE ‘PACSDRIVE’ FOLDERS, OR ANY OTHER FOLDER WHICH YOU CHOOSE TO INSTALL THE SOFTWARE. BY TRANSFERRING FILES TO PACSDRIVE, YOU CONSENT TO SHARE ACCESS TO THOSE FILES WITH PACSDRIVE.
Fair Use
PacsDrive reserves the right to monitor your use of the Products and terminate or suspend accounts of users who violate these Terms of Service or who PacsDrive deems, in its sole discretion, to be “abusers.” Such users may be notified prior to suspension or termination of their accounts; however, PacsDrive is not required to provide prior notice. Any failure by PacsDrive to enforce this policy will not preclude it from enforcing this policy at anytime in the future, whether for past or current violations.
Copyrights, Trademarks and other Intellectual Property Rights
All right, title and interest in and to the Software (including all copyright, trademark and other intellectual property rights therein) and the materials associated therewith (“Documentation”) are owned by PacsDrive or its suppliers. The Software is protected by copyright and other intellectual property laws and by international treaties.
“PacsDrive” along with the PacsDrive design logos and other marks that may appear on this website are trademarks or registered trademarks of PacsDrive or its subsidiaries in the United States and other countries. You may not copy, reproduce, republish, distribute, upload, post, transmit, modify or use the trademarks in any manner.
The entire content on this Website is copyrighted under United States and other copyright laws and is the property of PacsDrive. The copyrighted material may include works that are licensed to PacsDrive. In addition, some of the content on this web site is protected by trademark, privacy, and publicity laws.
PacsDrive does not accept ideas, concepts, or techniques for new services or products through the Website. If such information is received, it will not be considered confidential and PacsDrive will be deemed free to use, communicate and exploit such information in any manner it chooses.
Compression
PacsDrive uses lossy image compression, with a target compression ratio of 10:1, to store Patient Data transmitted by your use of the Products. The ratio meets and exceeds the quality generally accepted by industry standards. Nevertheless PacsDrive makes no warranty as to the quality of the images stored with the Products and recommends that only qualified licensed health care professionals make such judgments.
Minors
You agree to supervise usage by, and be responsible for the actions of, any minors who use your computer to access this site. By providing information or placing an order, you represent and warrant that you are at least thirteen (13) years of age.
Links
This site may contain links to third party websites. Neither these sites nor the companies to whom they belong are controlled by PacsDrive. PacsDrive does not screen, review or endorse such sites. PacsDrive is not responsible for and makes no representation regarding the quality or acceptability of the contents, products or services on any third party site. You may visit such third party sites solely at your own risk.
Privacy Policy
The PacsDrive Privacy Policy governs the use of information acquired from you. The PacsDrive Privacy Policy is hereby incorporated into these Terms of Service and is available at
www.pacsdrive.com/privacy.
Disclaimer of Warranty
YOUR USE OF THE PRODUCTS IS AT YOUR SOLE RISK. THE PRODUCTS ARE PROVIDED “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” PACSDRIVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. PACSDRIVE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVERS THAT MAKE THE WEBSITE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PACSDRIVE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. PACSDRIVE PROVIDES THE PRODUCTS ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO ACCESS OR USE THE PRODUCTS AT TIMES OR LOCATIONS OF THEIR CHOOSING. NO ORAL OR WRITTEN INFORMATION, REPRESENTATION OR ADVICE GIVEN BY PACSDRIVE OR AN AUTHORIZED REPRESENTATIVE OF PACSDRIVE SHALL CREATE A WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS OF SERVICE. NO USE OF THE PRODUCTS IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to you.
Limitation of Liability
PACSDRIVE’S ENTIRE LIABILITY AND YOUR (AND ANY PERSON CLAIMING THROUGH YOU) EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH PACSDRIVE (INCLUDING WITHOUT LIMITATION YOUR USE OF THE PRODUCTS) IS TO DISCONTINUE YOUR USE OF THE PRODUCTS. IN NO EVENT WILL PACSDRIVE, ITS AFFILIATES, EMPLOYEES, DIRECTORS, SHAREHOLDERS, CONTRACTORS, OR AGENTS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES UNDER ANY THEORY OF LAW OR EQUITY FOR ANY ERRORS IN OR THE USE OR INABILILTY TO USE THE WEBSITE OR THE PRODUCTS, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS, DATA OR GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF PACSDRIVE HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN ANY CASE, PACSDRIVE’S AND ITS SUPPLIERS’ AND LICENSORS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THESE TERMS OF SERVICE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES PAID BY YOU (IF ANY) TO PACSDRIVE FOR THE PRODUCTS, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF PACSDRIVE TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.
Modifications to the Terms of Service
PacsDrive reserves the right to change these terms and conditions under which the Products are offered by making changes to these Terms of Service. In the event PacsDrive makes material changes to these Terms of Service, all current PacsDrive customers and trial users will be notified via email at least 15 days before the modified Terms of Service go into effect. PacsDrive will email users at the email address provided by each user and is not responsible for invalid addresses or undeliverable email. Modified Terms of Service will be posted on the Website at least 15 days in advance of the effective date. You are responsible for regularly reviewing these Terms of Service. Your continued use of the Products constitutes your agreement to all such terms and conditions. If you do not agree with the modified Terms of Service, your only remedy is to discontinue using the Products and cancel your registration.
Indemnification
You agree to defend, indemnify and hold harmless PacsDrive and its respective officers, directors, employees, agents and representatives from and against any and all claims, actions, liabilities, costs or damages arising from or related to (i) any of your activities conducted in connection with the Products or (ii) your breach of these terms of service.
Termination
Upon termination of your use of the Products, you shall remove and destroy all copies of the Software, as applicable. All provisions in these Terms of Service regarding the protection and ownership of PacsDrive’s intellectual property, disclaimer of warranties, limitations of liability, governing law, indemnity and attorneys’ fees will survive such termination.
General
These Terms of Service along with any written documentation expressly incorporated herein by reference and published from time to time by PacsDrive constitutes the entire agreement and understanding between the parties concerning the subject matter hereof and thereof and supersedes all prior written or verbal agreements and understandings regarding the subject matter hereof and thereof. These Terms of Service may be amended only by a writing signed by both parties. Except to the extent, if any, applicable law requires otherwise, these Terms of Service shall be governed by the laws of the state of Utah, excluding its conflict of law provisions. Any legal action arising out of or relating to these Terms of Service or your use of this web site will take place solely in the state or federal courts in the state of Utah. If a court of competent jurisdiction finds any provision of these Terms of Service to be unenforceable, that provision shall be enforced to the maximum extent permissible, with the other provisions of these Terms of Service remaining in full force and effect. The controlling language of these Terms of Service is English. A waiver of any provision of these Terms of Service must be in writing and shall not constitute a continuing or future waiver of that or any other provision. You may not assign or otherwise transfer by operation of law or otherwise these Terms of Service or any rights or obligations herein except to an acquirer of your business in the case of a merger or the sale of all or substantially all of your assets to such acquirer. These Terms of Service shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. The relationship between PacsDrive and you is that of independent contractors and neither you nor your agents shall have any authority to bind PacsDrive in any way. The headings to the sections of these Terms of Service are used for convenience only and shall have no substantive meaning.