TMS MARKETING SOLUTIONS, LLC

TERMS AND CONDITIONS  

This document outlines the Terms and Conditions (the "Terms") applicable to the use of the software application provided by TMS Marketing Solutions, LLC ("Company"). The application is intended to facilitate connections between TMS-medical professionals ("Clients", “You”, “Your”, “Contracting Company” as further defined below) and potential patients, enabling lead generation and communication services. Access and use of the application, subscription services, and any related functionalities are governed by these Terms, which form a binding legal agreement between the User and the Company. Compliance with all applicable laws and regulations, including HIPAA, is required. The Company's application is a Software as a Service (SaaS) solution, and its use is subject to the terms and conditions of the Company's third-party SaaS provider. Users must acknowledge and agree to these Terms to utilize the application and its services.  

1. DEFINITIONS

a. App Access: The right to use the Company's software application, granted under the terms of a subscription agreement. This includes access to lead generation tools, communication features, and data export functionalities as per the contractual terms.

b. Contracting Company: Refers to a TMS-medical professional, or entity, that enters into an agreement with the Company to use the App for lead generation and patient communication. The term includes all legal or natural persons involved in the agreement, with joint and several obligations.

c. Data Export Rights: The Contracting Company's right to export patient data from the App during the active term of the Agreement. Post-termination or cancellation of services results in the loss of this right, barring resolution of outstanding payments.

d. Issue Reporting: The obligation of the Contracting Company to report any system-related issues through designated channels, including Slack or an online ticket system, for timely resolution.

e. Patient Data: Any information related to potential patients, including but not limited to names, phone numbers, email addresses, and health-related information, generated from the Company's advertising services.

f. Potential Patients: Refers to individuals who have been identified as prospective clients for TMS-medical professionals through the Services provided by Company. These individuals have either expressed interest in or have been targeted based on criteria suggesting a potential need for TMS-related medical services. The term encompasses those individuals whose names, contact information, and relevant health-related information are collected and managed within the App for the purpose of lead generation and communication by Contracting Companies.

g. Services: Refers to the software application and platform provided by the Company, which includes lead generation tools, communication facilitation between Clients and potential patients, data export functionalities, and any other related services offered through the Company's web interface, portals, and APIs.

h. Sources: Encompass a range of online and publicly accessible data sources utilized for lead generation purposes. These may include but are not limited to company websites, news portals, blogs, forums, social networks, and public databases like commercial registers and consumer portals.

i. Subscription Models: Defined plans offered by the Company, including but not limited to 6-month and 1-month agreements, determining the duration and scope of access to the App and services.

j. User: Designates any natural person(s) registered to use the Services, either by self-registration as a Client or by being authorized by a Client. Users in this context primarily include TMS-medical professionals who utilize the App for the purpose of connecting with potential patients and managing the leads generated by the Company.

2. SCOPE OF APPLICATION AND DEFINITIONS

2.1 Service Agreement and Acceptance. These Terms and Conditions govern the provision of Services by Company Name to Contracting Companies, including individual TMS-medical professionals and entities, under a subscription model. By subscribing to and using any of the Services, including the App, you agree to comply with and be bound by this Agreement.

2.2 Effective Date and Supersession of Previous Agreements. The effectiveness of these Terms and Conditions commences upon the earlier of (a) activation of your subscription to the Services or (b) execution of a Subscription Model agreement with Company. These terms supersede all previous communications and agreements between you and Company, unless otherwise expressly agreed in written form.

2.3 Intended Use of Services. The Services provided, including App Access, are intended for use in a professional capacity by both individual TMS-medical professionals and entities engaged in TMS-related patient lead generation and communication. By subscribing to and using these Services, you confirm that the usage is exclusively for commercial or professional purposes.

2.4 Acceptance of Terms and Exclusion of External Terms. Only the terms outlined in this Agreement, or those additional terms mutually agreed upon in writing by an authorized representative of Company will govern the provision of the Services. Any external or additional terms not documented in this Agreement, or a written addendum will not be recognized as binding.

3. CONTENT AND USE OF SERVICES

3.1 Service Provision and Amendments. Company provides its Services, including App Access, to Contracting Companies and Users as defined in the Agreement. The Services will be maintained and may be updated or amended throughout the Term, ensuring continuous improvement and adaptation to evolving needs.

3.2 Personal Data Sharing and Processing. The App facilitates communication between Contracting Companies and potential patients. While personal data sharing is not mandatory, it is essential for effective lead generation and communication. If personal data is shared, it will be handled in accordance with our Data Processing Agreement, which forms part of these Terms and Conditions.

3.3 Data Processing for Company's Purposes. For other Services provided by Company that do not involve processing personal data on your behalf, we process such data for our own business purposes. Consequently, no additional data processing agreement is required for these activities. For further details, please refer to Company's privacy policy https://app4tms.com/privacy.

3.4 Access to Specialized or Third-Party Services. Should Company offer specialized or third-party Services, your access to these Services might be contingent upon your agreement to additional terms and conditions.

3.5 Service Evolution and Adaptability. Contracting Companies acknowledge that the scope and content of Services and Patient Data obtained may change over time. To enhance the effectiveness of the Services, Company reserves the right to modify its offerings at any time at its sole discretion.

3.6 Automated Data Compilation and Limitations. All Patient Data and Results provided are compiled through automated systems. Company does not guarantee the completeness, relevance, or accuracy of this data and is not liable for the content sourced from external Sources.

3.7 Automated Content and Disclaimer. As the processing and delivery of Patient Data and Results are automated, there may occasionally be inaccurate or inappropriate content. Such occurrences do not constitute a defect of the Services provided by Company.

3.8 Responsibility for Data Accuracy and Suitability. Company may add additional information to the data provided by Contracting Companies as part of the Service. It is the responsibility of Contracting Companies to verify the accuracy and suitability of the Results for their intended use.

3.9 Right to Reject Queries and Results. Company reserves the right to reject specific Queries or the display of certain Results if they cannot be executed or displayed due to technical or legal constraints.

4. LICENSE AND HIPAA COMPLIANCE

4.1 License Grant to Individual Users. The Company grants the Contracting Company a non-exclusive, non-transferable license to use the Services, including the App, in accordance with the terms of this Agreement. This license is provided solely for the purpose of lead generation and communication with Potential Patients.

4.2 Restrictions on Service Use. The Contracting Company is entitled to use the Services within their professional practice for TMS-related purposes. Reselling, leasing, or transferring the Services to third parties is strictly prohibited unless prior consent is obtained from the Company in writing.

4.3 Personal Data Handling and HIPAA Compliance. Any exchange of personal or health-related information through the Services must comply with HIPAA regulations. The Contracting Company is responsible for ensuring that any personal data shared or received via the App aligns with HIPAA's privacy and security standards. The Company will provide necessary support to maintain compliance but ultimately, the responsibility lies with the Contracting Company.

4.4 Service Configuration and Usage. The Contracting Company is responsible for configuring their use of the Services to align with their specific needs, including managing communication with Potential Patients and ensuring appropriate handling of Patient Data.

4.5 Service Plans and Features. The Company offers various service packages, which include different features tailored to the needs of TMS-medical professionals. The Contracting Company will select a plan that best suits their professional requirements.

4.6 Service Availability and Maintenance. The Company endeavors to provide the Services with a high level of availability, targeting 99% uptime on an annual average. Scheduled maintenance activities will be communicated in advance, and the Company is not responsible for disruptions caused by external factors beyond its control.

4.7 Adjustments and Modifications. The Company reserves the right to adjust or modify the Services and Plans to better align with evolving needs and industry standards. Any significant changes will be communicated to the Contracting Company in a timely manner.

5. USER OBLIGATIONS

5.1 Responsibility for Confidentiality. Users are responsible for maintaining the confidentiality of their authentication credentials, such as logins and passwords. Any misuse of credentials resulting from a failure to uphold confidentiality is the sole responsibility of the User.

5.2 Due Care in Use. Contracting Companies and Users shall exercise due diligence in the use of the Services. This includes, but is not limited to: a.     Reporting any software errors, bugs, or IT security issues to the Company immediately upon discovery.

b.     Avoiding interference with the Services or the Company's infrastructure.

c.     Ensuring the Services are not used for illegal activities.

d.     Preventing the spread of harmful software, such as viruses or worms, through the Services.

e.     Using automated scripts for accessing the Services only as expressly permitted in the Agreement.

5.3 Privacy and Security Compliance. Users must:

a.     Not attempt to access or collect personal data of other Users or Potential Patients in a manner that violates their privacy or security.

b.     Comply with all applicable laws, including data protection and privacy regulations, especially HIPAA, in their use of the Services and handling of Patient Data.

5.4 Prohibited Actions. Users shall not:

a.     Circumvent usage limits or other restrictions as outlined in the Agreement.

b.     Copy, frame, or mirror any part of the Services without authorization.

c.     Use the Services for creating competitive products or for competitive benchmarking.

5.5 Breach and Consequences. In cases of suspected or actual breaches of these obligations, the Company may immediately restrict or suspend the User's access to the Services until the issue is resolved. If resolution is not feasible, the Company reserves the right to terminate the User's account.

5.6 Legal Compliance in Usage of Results. Users acknowledge that they are solely responsible for complying with all applicable laws and regulations in their use of the Results, including adherence to data protection and e-privacy laws. The Company does not provide legal advice on the use of Results.

6. RIGHTS AND OWNERSHIP

6.1 Intellectual Property Rights and Third-Party Licenses. You acknowledge that certain information or data provided through the Services may be subject to third-party intellectual property rights, such as copyrights or trademarks. The Company does not grant or manage such third-party rights. All intellectual property rights related to the Services remain with their respective owners.

6.2 Data Processing Rights. When you provide Patient Data or other relevant information to the Company for the purpose of using the Services, you grant the Company a non-exclusive right to process this data as necessary to deliver the Services in compliance with this Agreement and HIPAA regulations.

6.3 Confidentiality and Data Handling. The Company commits to maintaining the confidentiality of personal data and other information provided by you, such as details about Potential Patients. The Company will only use this data as necessary to provide the Services and will comply with HIPAA regulations in handling this information. Upon your request, the Company will make reasonable efforts to delete any received data and information.

6.4 Use of Aggregated and Anonymized Data. You acknowledge and agree that the Company may use aggregated and anonymized data derived from the Services to improve or develop the Services. This use will be in compliance with HIPAA regulations and will not compromise the confidentiality or security of any individual's personal health information.

7. SUPPORT

7.1 Availability of Customer Support. The Company commits to providing Contracting Companies with assistance and support in line with the chosen Subscription Model. Customer Support will be available during business hours to address inquiries promptly. The exact hours of support availability will align with the time zone and region of the Contracting Company to ensure efficient communication.

7.2 Scope of Support. Support provided by the Company will include assistance with the use of the App, navigation of features, data export functionalities, and any issues related to the Services. The support team will also guide Contracting Companies in complying with HIPAA regulations concerning the handling and communication of Patient Data through the App.

7.3 Reporting and Resolution of Issues. Contracting Companies are encouraged to report any system-related issues or concerns through the designated channels, including Slack or an online ticket system. The Company will endeavor to resolve issues within a reasonable timeframe, relative to the standard time needed for such concerns, and in accordance with HIPAA compliance requirements.

7.4 Customized Support Based on Subscription. The level of support and response times may vary depending on the specific Subscription Model chosen by the Contracting Company. This ensures that the support provided is tailored to the needs and expectations set by the subscription agreement.

8. SUBSCRIPTION AGREEMENT, PAYMENT, AND TERMINATION

8.1 Subscription Term. The initial duration of the Agreement with the Contracting Company, as outlined in the Subscription Agreement, and any subsequent renewal periods are collectively referred to as the “Term”.

8.2 Termination of Subscription. The Contracting Company may terminate the Subscription Agreement at the end of each Term. Extraordinary termination rights and termination for just cause remain unaffected. For any Subscription with a Term of six (6) months or one (1) month, a notice of non-renewal must be received by the Company at least 30 days prior to the end of the current Term. Subscriptions not canceled within this timeframe will automatically renew for a subsequent Term of the same duration.

8.3 Subscription Fees. The fees for the initial Term are as agreed upon in the Subscription Agreement. All prices are exclusive of applicable taxes. The Company will notify the Contracting Company of any such increases.

8.4 Payment Terms. Fees for each Term are payable annually in advance, unless otherwise specified in the Subscription Agreement. The Company will issue an invoice upon confirmation of the order or receipt of payment. All payments are due within fourteen (14) days of invoice receipt.

8.5 Consequences of Non-Payment. In case of non-payment, the Company reserves the right to:

a.     Restrict or suspend access to the Services until all overdue payments are made.

b.     Terminate the Subscription Agreement.

c.     Engage a third party for debt collection.

8.6 Notice of Suspension or Termination. The Company will provide at least one (1) week's prior notice (via email) before suspending or terminating access due to non-payment. Suspension of access does not affect the Term or the obligation to pay the agreed fees.

8.7 Contractual Information Accuracy. The Contracting Company must provide accurate and complete legal entity information when subscribing to the Services. This includes identification, billing, and contact details. The Contracting Company is obliged to promptly inform the Company of any changes to this information.

9. SERVICE DELIVERY AND RIGHTS ASSIGNMENT

9.1 Third-Party Involvement in Service Provision. The Company is authorized to engage third-party service providers to facilitate the delivery of Services under the Agreement. The Company will ensure that such third parties adhere to the same obligations as the Company, particularly concerning confidentiality, privacy, and HIPAA compliance as outlined in these Terms and Conditions.

9.2 Assignment of Agreement Rights. Contracting Companies may not assign, delegate, or transfer their rights or obligations under the Agreement to any third party without the Company's prior written consent. This consent requirement ensures the continuity and integrity of services and compliance with the Agreement, including HIPAA regulations.

9.3 Claims and Offsets. Contracting Companies are entitled to offset claims only if they are uncontested by the Company or have been validated by a court of law. This provision ensures that financial transactions and obligations are clear and legally grounded.

9.4 Withholding Payments. Contracting Companies may withhold payments or retain possession only to secure claims that are either uncontested or have been validated by a court of law. This clause ensures that any withholding of payment is justifiable and legally supported.

10. LIABILITY AND INDEMNIFICATION

10.1 Limitation of Liability. The Company shall be liable for damages only when caused intentionally or due to gross negligence. This limitation does not apply to breaches of essential contractual obligations, which are necessary for the proper execution of the Agreement. The Company's liability for breaching these essential obligations shall be limited to the annual fee paid by the Contracting Company for the year in which the breach occurred, except where the damages are foreseeable and typical for such an Agreement.

10.2 Exclusion of Certain Damages. The Company is not liable for indirect damages, such as lost profits, consequential damages, diminished value of the Contracting Company’s brand or business, or similar costs. This exclusion is intended to limit liability to direct, demonstrable damages arising from the Company's services.

10.3 Statutory Liabilities. Nothing in this Agreement shall limit the Company's statutory liabilities, including those under the Product Liability Act or for injuries to life, body, or health. The Company maintains liability for damages arising from its culpable actions in these areas.

10.4 Employee and Agent Liability. The limitations and exclusions of liability outlined in Sections 10.1 to 10.3 also apply to the personal liability of the Company's employees, representatives, agents, and others acting on its behalf.

10.5 Indemnification. The Contracting Company agrees to indemnify the Company against any third-party claims resulting from infringements caused by the Contracting Company, including HIPAA violations and breaches of data privacy. This indemnification covers reasonable legal costs incurred in defense. The Company will promptly inform the Contracting Company of any such claims and consult before settling. If the Company settles without the Contracting Company’s consent, it shall bear its own resulting costs.

11. MISCELLANEOUS

11.1 Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of Texas, without giving effect to any principles of conflicts of law. Any disputes arising under or in connection with this Agreement shall be subject to the exclusive jurisdiction of the competent courts located in Texas.

11.2 Amendment and Modification. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. The Company reserves the right to update or modify these Terms and Conditions at any time. Continued use of the App after any such changes shall constitute the Contracting Company's consent to such changes.

11.3 Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

11.4 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and related exhibits, schedules, appendices, and addenda, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

11.5 Notification of Changes. The Company shall provide notice to the Contracting Company of any material changes to these Terms and Conditions, either through the App interface, via email, or through other reasonable means of communication. Contracting Companies will be deemed to have accepted any changes to the Terms and Conditions unless they terminate their Agreement before the changes become effective.

11.6 HIPAA Compliance. The Company acknowledges its obligations under the Health Insurance Portability and Accountability Act (HIPAA) and will maintain compliance with HIPAA regulations in the handling, processing, and storage of any protected health information (PHI) as part of the Services provided.