Last updated on August 15, 2018
Progressive Notes, LLC., a Michigan Limited Liability Corporation, “Progressive Notes”), owns and/or operates the web pages available at www.ProgressiveNotes.com, and all sub-domains thereof (collectively, the “Site”). Access to and use of the software (“Software”) including the Progressive Notes Home Assessment mobile app, and services (“Services”) available on or through the Site are governed by this Terms of Service and License Agreement (this “Agreement”).
THIS IS A LEGALLY BINDING AGREEMENT. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT OR THE PRIVACY POLICY REFERENCED HEREIN, YOU MUST IMMEDIATELY LEAVE THE SITE AND YOU ARE NOT AUTHORIZED TO ACCESS OR USE ANY OF THE SERVICES OR SOFTWARE. BY ACCESSING OR USING THE SITE, SERVICES AND/OR SOFTWARE, YOU CONFIRM THAT YOU ARE AT LEAST 18 YEARS OLD, THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT, AND THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT.
If you are an individual paying subscriber, this Agreement is between you, individually, and Progressive Notes.
If you are an employee of a hospital, company, or other entity or organization that has subscribed to the Services and Software (an “Enterprise Subscriber”) and has authorized you to use the Site, Services and Software (an “Authorized User”), this Agreement is an agreement between you and the Enterprise Subscriber, on the one hand, and Progressive Notes, on the other hand. Progressive Notes may seek recourse against you for any violation of the terms of this Agreement.
If you are entering into this Agreement on behalf of an Enterprise Subscriber, you represent that you have the authority to bind the Enterprise Subscriber to this Agreement, in which case references to “you” in this Agreement shall mean the Enterprise Subscriber. If you do not have such authority, you must not accept this Agreement and may not use the Site, Software or Services.
License
In consideration for your agreement to this Agreement and your payment of all applicable Fees (as defined below), Progressive Notes grants you a personal, limited, non-exclusive, non-sub-licensable, non-transferable, revocable license to access and make use of the Site, the Services and the Software, subject to the terms and conditions set forth in this Agreement.
You may access and use the Site, Services and Software solely for your own personal purposes and only in accordance with any instruction manuals, user guides and other documentation as made available by Progressive Notes from time to time (“Documentation”).
If you are an Individual Subscriber or Enterprise Subscriber, the following restrictions apply.
You may not:
Progressive Notes may offer certain Software, including certain interfaces, for download from the Site (“Ancillary Software”). Subject to the other terms and conditions of this Agreement, you may install and use Ancillary Software on computers owned, leased or otherwise controlled by you, solely for your personal use in conjunction with your authorized use of the Services. Upon expiration or termination of this Agreement for any reason, you shall cease any further use of the Ancillary Software and shall promptly destroy all copies thereof in your possession.
Certain Services or Software (including Ancillary Software) may be subject to additional limitations, restrictions, terms and/or conditions specific to such Services or Software (“Specific Terms”). In such cases, the applicable Specific Terms will be made available to you and your access to and use of the relevant Services or Software will be contingent upon your acceptance of and compliance with such Specific Terms.
Registration and Security
By completing the registration process for any given Services, you are agreeing to subscribe to the selected Services, subject to the terms and conditions of this Agreement. You agree to provide Progressive Notes with accurate and complete registration information, and to promptly notify Progressive Notes in the event of any changes to any such information.
You shall be solely responsible for the security and proper use of all user IDs, passwords or other security devices used in connection with the Site, Software, and/or the Services, and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to or used by any other person or entity. You shall immediately inform Progressive Notes if there is any reason to believe that a user ID, password or any other security device issued by Progressive Notes has or is likely to become known to someone not authorized to use it, or is being or is likely to be used in an unauthorized way. Progressive Notes reserves the right (at its sole discretion) to request that you change your password(s) in connection with the Services, and you shall promptly comply with any such request.
You are solely responsible for all activity in connection with access to the Site, Software, and/or Services through your account or using your password, and for the security of your computer systems, and in no event shall Progressive Notes be liable for any loss or damages relating to such activity.
Enterprise Subscriber Responsibility for Authorized Users
Authorized Users may not transfer (including by way of sublicense, lease, assignment or other transfer, including by operation of law) their seat, username or right to use the Site, Services or Software to any third party. You, the Enterprise Subscriber, are solely responsible for the way your Authorized Users use the Site, Services and Software, and for ensuring that all of your Authorized Users comply with all of the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by an Authorized User shall be deemed to be a violation thereof by you.
Enterprise Subscribers will ensure no Protected Health Information (“PHI”), as defined by the 18 identifiers as listed in the US Health Insurance Portability and Accountability Act (“HIPAA”), is entered or included while using the Services. Authorized Users and Enterprise Subscribers are to utilize the Services as an educational tool only, and Progressive Notes is not responsible for providing HIPAA compliant transmission, storage or security of data entered.
Fees and Payments
Unless you are an Enterprise Subscriber or Authorized User thereof, your access to or use of the Services and/or Software shall be contingent upon your payment of all applicable fees as described on the Site from time to time (“Fees”). Enterprise Subscribers shall pay the fees set forth in the invoice(s) rendered by Progressive Notes in accordance with the payment terms set forth therein.
Upon registering for Services, unless you are an Enterprise Subscriber or Authorized User thereof, you will be required to designate a valid credit card account. You hereby authorize Progressive Notes to charge to your designated account all Fees relating to the Services you select, and you agree to pay all such Fees in accordance with the applicable card member agreement terms and conditions.
Progressive Notes reserves the right to revise its Fees, including by increasing or adding new Fees, at any time on ten (10) days’ notice. Such notice may be sent to you by email to your most recently provided email address or posted on the Site or by any other manner chosen by Progressive Notes in its commercially reasonable discretion. You will be deemed to have received any such notice that is posted on the Site on the day it was posted. Your use of the Services after the ten (10) day notice period constitutes your acceptance of the new or revised Fees. If you do not agree to the revised Fees, you may cancel your subscription by following the “View cancellation instructions” link below.
Continuous membership
To ensure uninterrupted service, all subscriptions to the Site, Software and Services are renewed automatically. However, you must pay the renewal fees through the Site within 30 days of notification by Progressive Notes. Failure to pay the renewal fees within 30 days will result in the immediate termination of the Software and Service. All subscriptions are renewed at the subscription level(s) in effect at the time the then-current subscription term ends.
Termination and Refund Policy
This Agreement shall continue until you cancel your subscription or until terminated by Progressive Notes. You may cancel your subscription at any time. View cancellation instructions at http://www.ProgressiveNotes.com. Except as may be expressly set forth herein, all Fees paid or accrued in connection with any Services are non-refundable, and Progressive Notes will not prorate any Fees paid for a subscription that is terminated before the end of its term.
Progressive Notes may deny you access to all or any part of the Services or terminate your account with or without prior notice if you engage in any conduct or activities that Progressive Notes determines, in its sole discretion, violate this Agreement or the rights of Progressive Notes or any third party, or is otherwise inappropriate.
Upon termination of your account(s), your right to use the Services and Software and to access the Site and any of its content will immediately cease. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability and miscellaneous provisions.
Access to Services
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access the Site or otherwise use the Services, including, without limitation, modems, hardware, software, internet service and telecommunications capacity. You shall be solely responsible for ensuring that such equipment and ancillary services are compatible with the Services and Software.
Mobile Services
The Site, Software, and Services may include products and services that are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device, (ii) the ability to browse the Services and the Site from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that Progressive Notes may communicate with you regarding Progressive Notes and other entities by electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.
User Content
You are solely responsible for all text, documents or other content or information uploaded, entered or otherwise transmitted by you in connection with your use of the Services and/or Software (“User Content”). User Content includes, among other things, any mistakes contained in the content or information transmitted by you. Progressive Notes has no obligation to monitor any User Content and shall have no liability to you or any other person or entity with respect thereto, including, without limitation, liability with respect to any information (including confidential information) contained in or apparent from any User Content. You warrant, represent and covenant that you own or have valid and enforceable permission to use all User Content, and that no User Content infringes, misappropriates or violates the rights of any person or entity or any applicable law, rule or regulation of any government authority of competent jurisdiction. Progressive Notes is not responsible for the loss, corruption or other changes to User Content. Without limiting the foregoing, any feature(s) of the Services and/or Software that may permit you to temporarily save or otherwise store certain User Content is offered for your convenience only and does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Services and/or Software.
By uploading or entering any User Content, you give Progressive Notes (and those it works with) permission to copy, store and use your User Content in connection with the provision of the Software and the Services.
Changes to Services or Terms
Progressive Notes reserves the right at any time to (i) change any information, specifications, features or functions of the Site, Services or Software, (ii) suspend or discontinue, temporarily or permanently, any or all of the Services, including the availability of any feature, database or content, or (iii) impose limits on certain features and Services or restrict access to parts or all of the Services in each case with or without prior notice and without any liability to you or any third party. Progressive Notes will use its commercially reasonable efforts to notify you of changes to the Services and/or Software that, in Progressive Notes’ reasonable opinion, have the effect of materially and adversely diminishing the functionality of the Services to which you have subscribed.
Progressive Notes may from time to time update or revise this Agreement. If Progressive Notes updates or revises this Agreement, Progressive Notes will notify you either by email to your most recently provided email address, by posting the updated or revised Terms of Service and End User License Agreement on the Site or by any other manner chosen by Progressive Notes in its commercially reasonable discretion. Your use of the Site, Services or Software following any such update or revision constitutes your agreement to be bound by and comply with this Agreement as updated or revised. You can view the most current Terms of Service and End User License Agreement at https://www.ProgressiveNotes.com. It is your responsibility to review the Terms of Service and End User License Agreement periodically.
Links to Third Party Sites
Any links on the Site to third party websites are provided for your convenience only. If you choose to access third party websites or obtain products or services from third parties, you do so entirely at your own risk and such access is between you and such third party. Progressive Notes does not warrant or make any representation regarding the legality, accuracy or authenticity of content presented by such websites or any products or services offered by third parties and shall have no liability for any loss or damages arising from the access or use of such websites, products or services.
Consent to Receive Email
Your registration to use the Site and/or Services constitutes your consent to receive email communications from Progressive Notes, LLCl including messages regarding customer service issues and other matters. You may opt not to receive email correspondence, other than technical notifications and email regarding issues related to your account and your use of the Site and Services, at any time by following the link included in the email messages.
Data Collection and Privacy
Progressive Notes does not collect personally identifiable information from you except to the extent you have explicitly given such information to Progressive Notes. Progressive Notes’ information practices are further described in its privacy policy, which is available at: https://www.ProgressiveNotes.com (the “Privacy Policy”). The Privacy Policy is an integral part of this Agreement and is expressly incorporated by reference, and by entering into this Agreement you agree to (i) all of the terms of the Privacy Policy, and (ii) Progressive Notes’ utilization of data as described in the Privacy Policy is not an actionable breach of your privacy or publicity rights.
Progressive Notes may from time to time update or revise the Privacy Policy. If Progressive Notes updates or revises the Privacy Policy, Progressive Notes will notify you either by email to your most recently provided email address, by posting the updated or revised Privacy Policy on the Site or by any other manner chosen by Progressive Notes in its commercially reasonable discretion. Your use of the Site, Services or Software following any such update or revision constitutes your agreement to be bound by and comply with the Privacy Policy as updated or revised.
Ownership
All User Content are and shall remain your property, and Progressive Notes shall acquire no right of ownership or use with respect to any User Content except in connection with its provision of the Services under this Agreement.
All intellectual property rights in and to the Software, Site and Services and other Progressive Notes IP are and shall remain the sole property of Progressive Notes and its affiliates and licensors, as applicable, and you shall acquire no right of ownership or use with respect to any Software or other Progressive Notes IP except as specified in this Agreement. You may from time to time provide Progressive Notes with suggestions, comments, recommendations and/or feedback regarding the Services, the Software and/or Progressive Notes’ related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily. As between you, Progressive Notes and, if applicable, the Enterprise Subscriber or Authorized User, all Feedback shall be exclusively owned by Progressive Notes, and you hereby make all assignments necessary to accomplish the foregoing ownership, and as a result Progressive Notes shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute and otherwise use and exploit any and all such Feedback as it deems appropriate, at its sole discretion, without obligation or liability of any kind to you, the Enterprise Subscriber or any other person or entity.
Indemnity
You shall indemnify, release and hold harmless Progressive Notes and its parents, subsidiaries and affiliates, and each of their respective officers, directors, employees and agents, from and against any loss, liability (including settlements, judgments, fines and penalties) and costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services or Software, violation of this Agreement, or infringement of any intellectual property or other right of any person or entity. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Warranty Disclaimers
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROGRESSIVE NOTES EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICES AND SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU AGREE THAT YOUR USE OF THE SITE, SERVICES AND SOFTWARE ARE AT YOUR OWN SOLE RISK AND THAT THE SITE, SERVICES AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PROGRESSIVE NOTES DOES NOT WARRANT THAT THE OPERATION OF THE SITE, SERVICES AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of Liability
IN NO EVENT SHALL PROGRESSIVE NOTES BE LIABLE WITH RESPECT TO THE SITE, SERVICES AND/ OR SOFTWARE FOR (I) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES YOU HAVE ACTUALLY PAID TO PROGRESSIVE NOTES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY; (II) ANY LOST PROFITS, LOST OR DAMAGED USER CONTENT OR OTHER DATA, OR FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE; OR (III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN PROGRESSIVE NOTES AND YOU. YOU UNDERSTAND THAT THE SITE, SERVICES AND SOFTWARE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
CERTAIN STATES DO NOT ALLOW THE LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
Arbitration
At Progressive Notes’ or your election, all disputes, claims or controversies arising out of or relating to this Agreement or the use of the Site, Software or Services that are not resolved by mutual agreement shall be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Ann Arbor, Michigan before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in this Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under this Agreement, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
Notwithstanding the provisions of the introductory section above, if Progressive Notes changes this “Arbitration” section after the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending Progressive Notes written notice within thirty (30) days of the date such change became effective. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and Progressive Notes in accordance with the provisions of this section as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).
General Provisions
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Michigan, without regard to any choice of law, conflicts of law or other principles that would result in the applicable of the laws or regulations of any other jurisdiction. Subject to the section titled “Arbitration”, any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Washtenaw County, Michigan. You and Progressive Notes agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
This Agreement and the rights and obligations herein are personal to you, and you may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Progressive Notes. Progressive Notes may freely assign this Agreement.
If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision(s).
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
If Progressive Notes is unable to perform any obligation under this Agreement because of any matter beyond its reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of Progressive Notes), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond Progressive Notes’ reasonable control (each, a “Force Majeure Event”), Progressive Notes will have no liability to you for such failure to perform; provided, however, that Progressive Notes shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event. If any Force Majeure Event continues for more than sixty (60) days, either Progressive Notes or you may terminate this Agreement by delivery of written notice to the other party. You will remain responsible for all Fees incurred through the last day the Services were available.
If you and Progressive Notes have executed a separate Subscription Agreement applicable to your access to and use of the Site, Services and/or Software, then the terms and conditions of such Subscription Agreement shall prevail to the extent of any conflict with the terms and conditions of this Agreement. In all other cases, this Agreement constitutes the entire agreement between Progressive Notes and you with respect to its subject matter, and supersedes all prior communications and proposals, whether electronic, oral or written, between Progressive Notes and you. No waiver or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party.