RECORDS RETRIEVAL, DUPLICATION, SUMMARIZATION (ESUMMARY BY ABI™), AND RELATED SERVICES TERMS AND CONDITIONS (ABI Document Support Services)
1. DEFINITIONS: Certain capitalized terms used in these Terms & Conditions have the meanings set forth below.
“Confidential Information” means any information relating to or disclosed in the course of the provision of Services hereunder that is or should be reasonably understood to be confidential or proprietary to the disclosing party including, without limitation, technical or non-technical data, product or service plans, developments, processes, designs, techniques, devices, formulae, software (whether owned by, licensed by or sublicensed by a party hereto and including both source and object code), business plans, and agreements with third parties. “Confidential Information” shall not include information (1) already lawfully known to the receiving party at the time of disclosure by the disclosing party, (2) generally known to the public through no act or fault of the receiving party, or (3) lawfully obtained from any third party that, to the knowledge of the receiving party, has no duty or obligation of confidentiality to the disclosing party with respect to such information.
“Customer Data” means any and all data and materials of Customer, or obtained by ABI upon Customer’s order or other direction of Customer and which is captured, stored, processed, accessed, recovered or restored in any manner in connection with the Services rendered by ABI. Customer Data shall include any updates to such data that Customer may make from time to time.
“Software” means only the eSummary by ABI™ software program made available by ABI, and corresponding documentation, associated media, printed materials, electronic documentation, and all updates, upgrades, modifications, patches and the like made to or in connection with said eSummary by ABI™ software program to the extent that such items are not accompanied by a separate license agreement or terms and conditions of use. The Software is proprietary to ABI and is protected by intellectual property laws and treaties.
(a) With respect to eSummary by ABI™, subject to Customer’s payment in full of all applicable fees, costs and expenses required to be paid by Customer to ABI in connection therewith, ABI grants to Customer a revocable, non-exclusive, non-assignable, limited license to the Software, in machine-readable object code form only. Customer may install, access and use the Software, solely internally, and only for capturing, storing, processing and accessing Customer Data. The Software is licensed for use by Customer and may not be used for processing of third-party data as a service bureau, application service provider or otherwise. Customer shall not make any use of the Software in any manner not expressly permitted by these Terms & Conditions.
(b) Customer agrees: (1) not to remove any ABI notices in the Software; (2) not to sell, transfer, rent, lease or sub-license the Software or documentation to any third party; (3) not to alter or modify the Software; and (4) not to reverse engineer, disassemble, decompile or attempt to derive source code from the Software, or prepare derivative works therefrom.
(c) Customer may not assign, transfer or sublicense all or part of these Terms & Conditions or the Software without the prior written consent of ABI.
3. OWNERSHIP OF SOFTWARE: ABI owns directly, or indirectly through its direct or indirect subsidiaries, and Customer acknowledges and agrees that ABI owns, and Customer acknowledges and agrees that ABI owns, the Software, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks and proprietary and confidential information rights in or associated with the Software and upgrades, updates, modifications, patches and the like related thereto. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Software are transferred to Customer. Customer agrees that nothing in these Terms & Conditions or associated documents gives Customer any right, title or interest in the Software, except for the limited express rights granted in Section 2 of these Terms & Conditions. All rights not specifically granted in these Terms & Conditions, including Federal and International Copyrights, are reserved by ABI.
4. CUSTOMER’S OBLIGATIONS AND RESPONSIBILITIES - OTHER REQUIRED SOFTWARE, HARDWARE, ETC.: Customer shall be solely responsible for obtaining and maintaining, at its own expense, all software, hardware (including without limitation network systems), telephonic or other communications circuits, and Internet Service Provider relationships that are necessary or appropriate for Customer to properly access and use any Services or the Software. ABI shall have no responsibility or liability for any unavailability or failure of, or nonconformity or defect in, any Services or the Software that is caused by or related in any manner to any failure of Customer to obtain and maintain all such software, hardware, equipment, circuits and relationships.
5. CONFIDENTIALITY; AUTHORIZATION REGARDING CUSTOMER DATA: Customer and ABI each agree that, with respect to the Confidential Information of the other party, during the term of the provision of the Services by ABI to Customer, and for a period of five (5) years (or in the case of any Confidential Information of a disclosing party that is a “trade secret”, for a period of the longer of five (5) years or so long as such information remains a “trade secret” under applicable law) thereafter, such recipient party shall at all times maintain the confidentiality of the other party’s Confidential Information, using the same degree of care that such party uses to protect its own confidential information, but in any event not less than reasonable care; and shall not use or disclose to any third party any such Confidential Information (except in performance of the Services), except as may be required by law or court order. Each party shall be liable and responsible for any breach of this Section committed by any of such party’s employees, agents, consultants, contractors, representatives or anyone else who has gained access to such Confidential Information through the recipient party. Further, Customer acknowledges and agrees that the Customer Data may contain confidential or private information of third parties which may be protected by federal, state or local laws, and Customer hereby represents and agrees as follows: (i) Customer is authorized, by express authorization of the owner thereof, by lawful subpoena or by other lawful basis, to furnish to ABI, or to have ABI obtain on its behalf, the Customer Data, (ii) Customer will not furnish to ABI, or have ABI obtain on its behalf, any Customer Data for which it is not so authorized, and (iii) Customer will comply with all applicable laws in connection with its use or disclosure, or its authorization of use or disclosure by ABI, of Customer Data.
6. MAINTENANCE OF CUSTOMER DATA: ABI will not provide access to Customer Data except to Customer or any person authorized by Customer. Notwithstanding anything herein to the contrary, ABI will not be required to maintain Customer Data in its possession for more than thirty-six (36) months, and ABI may thereafter destroy such Customer Data without any liability to Customer. Further, ABI will have no responsibility for any loss, destruction or corruption of any notes or updates made or added to Customer Data at any time by Customer or any person authorized by Customer.
7. ACCEPTABLE USE OBLIGATIONS:
A. Customer is responsible for any misuse of the Services and the Software. Therefore, Customer must take all reasonable precautions to protect access and use of the Services and the Software.
B. Customer shall not use the Services of the Software in any manner in violation of applicable law including, but not limited to, by: (i) Infringing or misappropriating intellectual property rights, including copyrights, trademarks, service marks, software, patents and trade secrets; (ii) Displaying, transmitting, storing or making available child pornography materials; (iii) Transmitting, distributing or storing any material that is unlawful, including encryption software in violation of U.S. export control laws, or that presents a material risk of civil or criminal liability to ABI or its direct or indirect subsidiaries or affiliates; or (iv) Displaying, transmitting, storing or publishing information that constitutes libel, slander, defamation, harassment, obscenity, or otherwise violates the privacy or personal rights of any person.
C. Customer shall not use the Services or the Software to engage in any of the following: (i) Interfering with, gaining unauthorized access to or otherwise violating the security of ABI’s or another party’s server, network, personal computer, network access or control devices, software or data, or other system, or to attempt to do any of the foregoing, including, but not limited to, use in the development, distribution or execution of Internet viruses, worms, denial of service attacks, network flooding or other malicious activities intended to disrupt computer services or destroy data; (ii) Interfering with ABI’s network or the use and enjoyment of the Services or the Software received by other authorized customers of ABI; (iii) Violating personal privacy rights; (iv) Engaging in any activities that ABI believes, in its sole discretion, might be harmful to ABI’s operations, public image or reputation.
8. SERVICE SUSPENSION FOR VIOLATIONS: In the event of any default by Customer in the payment of any amounts when due to ABI as specified on the applicable invoice(s) from ABI, which default continues unremedied for at least ten (10) calendar days, ABI shall have the right to suspend or terminate Customer’s right of use of the Services or the Software or block access thereto (each such circumstance, a “Service Suspension”) unless and until such default, and any and all other defaults by Customer under these Terms & Conditions, shall have been cured. ABI may institute a Service Suspension upon at least seven (7) calendar days’ prior written notice to Customer in the case of any violation of these Terms & Conditions, and may do so without notice for any of the following reasons: (a) in response to a court order or government notice that certain conduct must be stopped or (b) when ABI reasonably determines: (1) that it may be exposed to sanction, civil liability or prosecution; (2) that such violation may cause harm to or interfere with the integrity or normal operations or security of ABI’s network or networks with which ABI is interconnected or interfere with another of ABI’s customer’s use of ABI services or software products; or (3) that such violation otherwise presents imminent risk of harm to ABI or other of ABI’s customers or their respective systems or employees. Any such Service Suspension shall continue unless and until such violation, and any and all other defaults by Customer, shall have been cured to the satisfaction of ABI. Customer is responsible for all charges or fees due to ABI through the date the Service Suspension begins with respect to the Services to which the Service Suspension applies. Notwithstanding the preceding sentence, Customer shall not be relieved of any other payment obligations to ABI with respect to any Services to which a Service Suspension is not in effect.
9. WARRANTY DISCLAIMER: THE SERVICES AND ANY RELATED HARDWARE AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND ABI AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE, WARRANTIES AGAINST INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION GIVEN BY ABI, ITS AGENTS OR EMPLOYEES SHALL CREATE ANY ADDITIONAL WARRANTY. NO MODIFICATION OR ADDITIONAL WARRANTY IS AUTHORIZED UNLESS IT IS SET FORTH IN WRITING, REFERENCES THESE TERMS & CONDITIONS, AND IS SIGNED ON BEHALF OF ABI BY A CORPORATE OFFICER.
CUSTOMER ACKNOWLEDGES THAT RECORDS OR DOCUMENTS RETRIEVED OR MAINTAINED BY ABI AS ORDERED OR DIRECTED BY CUSTOMER THAT ARE DEGRADED, DAMAGED, FADED, OR OTHERWISE OF POOR QUALITY (COLLECTIVELY, “DEGRADED DOCUMENTS”) MAY NOT BE ACCURATELY AND/OR EFFECTIVELY SCANNED INTO A DIGITAL IMAGE OR SUMMARIZED IN ESUMMARY BY ABI™. ABI MAKES NO REPRESENTATIONS AND WARRANTIES REGARDING THE QUALITY OF DIGITAL IMAGES OR SUMMARIZATIONS IN ESUMMARY BY ABI THAT ARE SCANNED OR SUMMARIZED FROM DEGRADED DOCUMENTS, AND CUSTOMER WAIVES ANY AND ALL CLAIMS AGAINST ABI RELATING TO SUCH DEGRADED DOCUMENTS AND THE RESULTING DIGITAL IMAGES OR SUMMARIZATIONS IN ESUMMARY BY ABI™. CUSTOMER FURTHER ACKNOWLEDGES THAT THE MEDIA ON WHICH DIGITAL IMAGES ARE STORED (INCLUDING, BUT NOT LIMITED TO, CD-ROMs AND DVD-ROMs) MAY BE PRONE TO ERRORS, MALFUNCTIONS, OR OTHER PROBLEMS. ACCORDINGLY, FOLLOWING ACCEPTANCE OF SUCH MEDIA, IF ANY, BY CUSTOMER, ABI MAKES NO REPRESENTATIONS AND WARRANTIES REGARDING SUCH MEDIA, AND CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE CARE, MAINTENANCE, STORAGE, AND HANDLING OF SUCH MEDIA AND ANY RESULTING ERRORS, MALFUNCTIONS, OR OTHER PROBLEMS.
10. LIMITATION OF LIABILITY: IN NO CASE SHALL THE LIABILITY OF ABI EXCEED THE AMOUNT OF FEES AND CHARGES ACTUALLY PAID BY CUSTOMER IN THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL ABI OR ITS DIRECT OR INDIRECT SUPPLIERS BE LIABLE FOR ANY LOST PROFITS OR REVENUE, LOST SAVINGS, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR OTHER PECUNIARY LOSS (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH INFORMATION, OR THE COST OF SUBSTITUTE SOFTWARE) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THESE TERMS AND CONDITIONS, OR ANY USE OR INABILITY TO USE ANY SOFTWARE OR SERVICES, EVEN IF ABI OR SUCH SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ABI SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO, LOSS OF OR INTERCEPTION OR MISDIRECTION OF CUSTOMER’S DATA, FILES, SOFTWARE, CODE, OPERATING SYSTEMS, APPLICATIONS OR OTHER INTANGIBLE PROPERTY THAT OCCURS DURING CONNECTION, TRANSMISSION, USE OR RESTORATION BY CUSTOMER OR ABI IN CONJUNCTION WITH THE SERVICES OR THE SOFTWARE. ALL CLAIMS BY CUSTOMER FOR ANY TYPE OF LOSS, COST, OR DAMAGE WHATSOEVER MUST BE PRESENTED TO ABI IN WRITING WITHIN A REASONABLE TIME AFTER SUCH LOSS, COST, OR DAMAGE IS INCURRED, AND IN NO EVENT LATER THAN THIRTY (30) DAYS AFTER SUCH EVENT.
11. INDEMNIFICATION: Customer shall indemnify, protect, defend, and hold harmless ABI and its directors, officers, employees, shareholders, and agents, from and against any and all claims, liabilities, losses, damages, injuries, demands, actions, causes of action, suits, proceedings, judgments, and expenses, including, without limitation, attorneys’ fees, court costs, and other legal expenses, including, but not limited to, those incurred at the trial and appellate levels and in any bankruptcy, reorganization, insolvency, or other similar proceedings, arising from or connected with (i) any breach by Customer of any provision hereof, (ii) Customer’s use of the Software for any reason other than its specified purpose, or (iii) ABI’s provision of the Services or the Software as ordered by or at the direction of Customer or a person authorized by Customer. Customer shall not settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of ABI.
12. FORCE MAJEURE: No failure, delay or default in performance of any obligation of ABI or Customer (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials, equipment, transmission services or utilities; sabotage; viruses; or the act, negligence or default of the other party) and without negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other party. This Section shall in no way limit the right of either party to make any claim against third parties for any damages suffered due to said causes.
13. GOVERNING LAW; JURISDICTION: These Terms & Conditions and any claim, action, suit, proceeding or dispute arising out of the Services or these Terms & Conditions shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Missouri, without regard to the conflicts of laws provisions thereof. Any and all suits for any and every incident or dispute arising out of the Services or these Terms & Conditions shall be instituted only in the State of Missouri, Circuit Court of Greene County. In the event said court shall find, as a matter of law, that it does not have jurisdiction over the subject matter of the litigation, then such litigation may be heard by such other court in the State of Missouri, or elsewhere, which does have jurisdiction over the subject matter related to such litigation. Customer expressly waives any right to remove such action to any federal court. Any action for breach, loss, cost or other damages in connection with the Services or these Terms & Conditions must be commenced within one (1) year after the cause of action has accrued.
14. INTERPRETATION: The headings used in these Terms & Conditions are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in these Terms & Conditions shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to these Terms & Conditions.
15. WAIVER: No waiver of or failure or delay in exercising or enforcing any right or remedy on one or more occasions by either party shall be deemed a waiver of such right or remedy on any other occasion.
16. BINDING AGREEMENT: The provisions of these Terms & Conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
17. SEVERABILITY: In the event that any term or provision of these Terms & Conditions is deemed by a court of competent jurisdiction to be invalid or unenforceable under applicable law, such provision will be ineffective only to the extent of such invalidity or unenforceability, and such invalidity or unenforceability will attach only to such provision and will not affect or render invalid or unenforceable any other provision of these Terms & Conditions.
18. INJUNCTIVE RELIEF: The parties hereto recognize that a remedy at law for a breach of the provisions hereof relating to confidential information and intellectual property rights will not be adequate for the parties’ protection and, accordingly, each shall have the right, in addition to any other relief and remedies available to it, and without bond and without the necessity of showing actual monetary damages, to obtain specific performance or injunctive relief to enforce the provisions of these Terms & Conditions.
19. ATTORNEYS’ FEES; WAIVER OF JURY TRIAL: Notwithstanding anything herein to the contrary, in the event action or suit is brought by any party to enforce these Terms & Conditions, the party who is not the substantially prevailing party in such action or suit shall pay the costs, including reasonable attorneys’ fees, incurred by the substantially prevailing party in relation to such action or suit and any appeal therefrom. The parties voluntarily and intentionally waive any rights they may have to a trial by jury in connection with any litigation that may arise out of or under these Terms & Conditions.
20. INDEPENDENT CONTRACTOR: Each party will be considered to be an independent party and will not be construed to be an agent or representative of the other party, and therefore, has no liability for the acts or omissions of the other party. In addition, neither party, nor any of its employees, agents, or subcontractors, will be deemed to be employees or agents of the other party. Therefore, neither party nor any of its employees, agents or subcontractors, will be entitled to compensation, workers compensation or employee benefits of the other party by virtue of the Services or these Terms & Conditions.
21. SURVIVAL OF OBLIGATIONS: The payment obligations of Customer with regard to the Services as set forth on the applicable invoice(s) from ABI, and Sections 2, 5, 6, 9, 10, 11, 18, 19 and 21 of these Terms & Conditions, will survive the cessation of the provision of all Services and shall remain in effect indefinitely. Additionally, if Customer has ordered or otherwise requested ABI to perform Services, and Customer later requests ABI to terminate the provision of those specific Services, Customer acknowledges and agrees that ABI may complete such portion of those Services that are in process, and Customer shall remain obligated to pay ABI all amounts due for the portion of such Services performed by ABI.
22. INTEGRATION: These Terms & Conditions set forth the entire agreement and understanding between the parties pertaining to the subject matter and merges all prior written and oral communications between them on the same subject matter. Neither of the parties shall be bound by any conditions, definitions, warranties, understandings or representations with respect to the subject matter other than as expressly provided in these Terms & Conditions. These Terms & Conditions may be modified, from time to time, by ABI upon written notice provided to Customer (including by email or by “click-through” updates on its website). These Terms & Conditions, shall not be supplemented or modified by any course of performance, course of dealing or trade usage.
ABI Cares About Your Privacy
Gathering of Information on the ABI Website
ABI collects personally-identifying information (such as your name, e-mail address, address, telephone number, for a variety of purposes.
ABI asks visitors to provide certain personal information when they register at the website, when they create a profile, and when they send an email to ABI.
Like other websites, ABI’s server automatically creates log files for each visitor who accesses the website. The information in these “access logs” allows us to continually enhance the overall experience for our website users. The access logs do NOT record a visitor’s name, address, e-mail address, credit card numbers, or any other personally-identifying information. Rather, they contain some or all of the following information:
• The Internet Protocol Address (IP Address) of the machine which accessed the website. • Geolocation information (based on IP Address) • The date of the visit. • The time of the visit. • The path taken through the ABI website. • The browser being used. • A list of files downloaded or viewed. • The amount of time spent listening to/viewing media files. • Any errors encountered.
Gathering of Information on the ABI Mobile App
The ABI mobile app asks users to provide certain personally-identifiable information (name, e-mail address, address, telephone number) in order to log in to their user account.
Cookies and Other Technologies
The ABI website also uses ‘cookies’ to collect information. A cookie is a string of characters that can be written to a file on the user’s hard drive when the user visits the web site. The cookie can be used only as a record keeping device to store user IDs and information that the site already has. It cannot be used to read other information from the user’s hard drive.
Third party websites that you link to from the ABI Services may also use their own cookies.
Web beacons may be used alone or in conjunction with cookies, to help compile information about and facilitate usage of the ABI website, including usage of certain content. A web beacon is an electronic image, which may be hosted on another website and may also be known as a single-pixel (1×1) or clear .gif., which can be used to recognize certain information allowed by your browser, such as cookies, the time and date of a page viewed, and a description of where content is placed. We may use web beacons on the ABI website from time to time for this and other purposes.
If you wish to prevent certain or all cookies from being set to your hard drive or device, prevent certain types of web beacons, or to clear existing cookies from your browser’s or device’s cache, you may be able to disable them in your browser’s preferences, although your browser might then be unable to accommodate certain functionalities on the ABI website.
Use of Information
ABI does not sell, trade, or rent a user’s personally-identifying information to others. The use of personally-identifying information is limited to the following: managing and administering the ABI Services; responding to user messages; sending ABI e-mail newsletters and other communications, including marketing and promotional communications to users ; other internal ABI purposes; and other purposes specified at the time the information is gathered.
ABI also may disclose personal information if required to do so by law or if it believes that such action is necessary to (a) comply with the law or with legal process, (b) protect against misuse or unauthorized use of the ABI Services, or (c) protect the personal safety or property of users of the ABI Services, the public or ABI and its employees.
ABI may share non-identifying aggregate information with third parties in order to analyze the use of and to improve the design of the ABI Services, as appropriate. For example, we may use third party service providers to help us operate our business and the ABI Services or to administer activities on our behalf, such as sending out newsletters or surveys. However, we will not disclose any personally identifiable information to those third parties without your consent.
If you do not want your personally-identifying information to be collected or used for any of these purposes, please do not provide it (although if you do not provide it, you may not be able to use or participate in certain features of the ABI Services). You can also ‘opt out’ according to the process described below.