This agreement (the “Agreement” or “Terms of Service”) is entered into as of the date of last signature as executed on the Order Form (defined below) (the “Effective Date”) by and between MyTIPreport, LLC (“MyTIPreport”), and the Client listed on the applicable Order Form (referred to throughout as the “Client”). In consideration of the mutual promises, terms, and conditions set forth herein, the parties agree as follows:
MyTIPreport is a platform that captures, exchanges, tracks, analyzes, and reports information regarding milestones published by Accreditation Council for Graduate Medical Education and the developmental progress of medical students, residents and fellows (the “System”). To receive a license to the System as detailed herein, Client must execute an Order Form detailing Client’s name, address, point of contact, program, product, type of user, service start and end dates, quantity of users, and total price (“Order Form”). The following Terms of Service govern Client’s permitted use of the System, and form a legal agreement between Client and MyTIPreport.
MyTIPreport may, without notice, at any time make improvements or changes in the products, services, or programs used in this System. Information about large changes or new features will be communicated, on a best-effort basis, once those changes have been made if MyTIPreport decide that information will be useful to MyTIPreport users.
MyTIPreport owns, controls, and/or licenses all text, graphics, interfaces, photographs, trademarks, logos, and computer code comprising the System including but not limited to the design, structure, selection, coordination, expression, and arrangement of the System (“MyTIPreport IP”). The System is protected by patent, trade dress, copyright, trademark, and other intellectual property rights and laws. This System and all content may not be copied, reproduced, republished, uploaded, posted, transmitted, or distributed without MyTIPreport’s prior written consent. Notwithstanding the foregoing, any materials available for downloading, access, or other use from this System with their own license terms, conditions, and notices will be governed by such terms, conditions, and notices.
During the Term, and subject to Client’s compliance with these Terms of Service, MyTIPreport grants Client a limited, non-exclusive, non-sublicensable, revocable, non-transferrable limited license to access and use, and permits individuals identified by Client (the “Authorized Users”) to access and use the System. Any rights not expressly granted herein are reserved by MyTIPreport. Except for the limited permission in the preceding paragraph, MyTIPreport does not grant Client any express or implied rights to the MyTIPreport IP, or licenses under any patents, trademarks, copyrights, or other proprietary or intellectual property rights.
In order to use the System, Authorized Users will be required to register an account with the System. Client’s Authorized Users are solely responsible for keeping account information confidential, including password, challenge questions, and other verification methods. Client is responsible and liable for Authorized Users’ use of the System, including without limitation any Authorized User conduct that would violate the requirements of this Agreement. MyTIPreport shall not be liable for any loss of data or functionality to the extent caused directly or indirectly by Client’s administrative or Authorized Users.
Client may not attempt or cause to attempt to gain unauthorized access to any portion or feature of the System, or any other systems or networks connected to the System, by hacking, password “cracking,” or any other illegitimate means. Client may not breach or cause to breach the security or authentication measures on the System or any other systems or networks connected to the System, or otherwise attempt to interfere with the proper functioning of the System.
CLIENT MAY NOT INPUT OR CAUSE TO BE INPUTTED ANY INFORMATION ABOUT HEALTH STATUS, PROVISION OF HEALTH CARE, OR PAYMENT FOR HEALTH CARE THAT CAN BE LINKED TO A SPECIFIC INDIVIDUAL, INCLUDING, WITHOUT LIMITATION, INFORMATION FALLING WITHIN THE DEFINITION OF “PROTECTED HEALTH INFORMATION” UNDER 45 C.F.R. § 160.103. Client understands that the System does not require the collection of patient-identifying information and is not intended for the purpose of collecting or maintaining patient-identifying information. Client agrees to not use the System or any of MyTIPreport’s services to record information that identifies patients, including medical record numbers or insurance record numbers. Notwithstanding the foregoing, protected health information about a user may be recorded and maintained in MyTIPreport’s System provided that such information solely concerns the user who supplies the information (most typically, immunization confirmations). Such information is exempted from HIPAA pursuant to 45 CFR §160.103 (definition of “Protected Heath Information”, subsections 2(i) and 2(iii)) but, although exempted, MyTIPreport protects such information pursuant to HIPAA requirements.
If MyTIPreport determines Client has violated these Terms of Service, MyTIPreport reserves the right to modify, suspend, or terminate operation of or access to the System, or any portion of the System, or any Authorized User’s access to the System. MyTIPreport will not be liable to Client or to any third party for termination of access to the System for any reason.
By downloading the System’s mobile device application from the iTunes® or Apple® Store for use with an Apple Inc. (“Apple”) mobile device (“Apple Mobile App”) or from Google Play® or Google, Inc. (“Google” and together with Apple, the “Device Providers”) for use with an Android® software enabled mobile device (“Android Mobile App” and together with Apple Mobile App, the “Mobile Apps”), Client acknowledges:
Additional terms and conditions may apply to purchases of services while on the System, all of which terms are made a part of these Terms of Service by this reference. If there is a conflict between these Terms of Service and the terms posted for or applicable to a specific portion of the System or for any service offered on or through the System, the latter terms shall control with respect to use of that portion of the System or the specific service.
Term. Unless earlier terminated as provided in this Agreement, this Agreement commences on the Effective Date and shall continue until all Order Forms have terminated or expired (“Term”). The term of each Order Form shall be as set forth in the Order Form (a “Subscription Term”).
By downloading the System’s mobile device application from the iTunes® or Apple® Store for use with an Apple Inc. (“Apple”) mobile device (“Apple Mobile App”) or from Google Play® or Google, Inc. (“Google” and together with Apple, the “Device Providers”) for use with an Android® software enabled mobile device (“Android Mobile App” and together with Apple Mobile App, the “Mobile Apps”), Client acknowledges:
Termination Rights.
Effect of Termination. Upon termination of this Agreement or an Order Form, MyTIPreport shall immediately cease providing access to the System and all usage rights granted under this Agreement shall terminate. Provided that Client has paid for all Fees in full as of the date of termination, Client may, upon request promptly following termination of the Agreement, receive from MyTIPreport the most recently completed Client Data in the format that MyTIPreport regularly provides to Client.
Unless Client provides MyTIPreport with a valid tax-exempt certificate on or prior to execution of the associated Order Form, MyTIPreport shall invoice Client for all such taxes, including all applicable sales, use, value added, transfer and any other taxes (other than MyTIPreport's income and payroll taxes), fees, or costs, however designated, which are collected or levied against MyTIPreport pursuant to providing the System under this Agreement. Client shall pay MyTIPreport the fees set forth in the Order Form for use of the System by Authorized Users (the “Per User Subscription Fees”) as well as any service fees (such as implementation, consultation, etc.) set forth therein (“Fees”).
MyTIPreport reserves the right to suspend access to the System if Client is more than thirty (30) days past due on payment of any undisputed amounts due to MyTIPreport under an Order Form, but only after MyTIPreport notifies Client of such failure and such failure continues for fifteen (15) days after receipt of such notice. Suspension of access to the System shall not release Client of its payment obligations under this Agreement. Client agrees that MyTIPreport shall not be liable to Client or to any third party for any liabilities, claims or expenses arising from or relating to suspension of access to the System resulting from Client’s nonpayment.
MyTIPreport Privacy Policy applies to use of this System, and its terms are made a part of these Terms of Service by this reference. The MyTIPreport Privacy Policy is located at https://mytipreport.org/privacy-policy.
This System may contain links to independent third-party Web sites, including, without limitation, those of the Accreditation Council for Graduate Medical Education (“Linked Services”). MyTIPreport provides these Linked Services solely for convenience, and do not control or endorse any of them. MyTIPreport is not and cannot be responsible for the content, security, or privacy policies of such Linked Services.
Any and all information submitted to MyTIPreport or submitted to the System by Client, its employees, representatives, agents, contractors, and vendors, or its Authorized Users (“Client Data”) shall remain the sole property of Client during and after the Term of this Agreement. MyTIPreport shall use the Client Data submitted by Client for sole purpose of performing its obligations under this Agreement. A portion of Client’s Client Data may be comprised of historical trainee data that Client maintains in conjunction with its oversight and management of individual learner profiles, which may or may not contain personal data, for its past and current students, residents, and fellows (the “Trainee Data”). The Trainee Data is a material source of and made a part of the Client Data and the Trainee Data shall be subject to the same terms and conditions in the Agreement as the Client Data.
Client represents and warrants that all Client Data is the property of Client, or that Client has the rights to disclose or deliver the Client Data to MyTIPreport, and that the Client Data does not infringe any copyright, trademark, trade secret, patent or other right of any third party. Client represents, warrants, and certifies that Client as well as Client’s employees, representatives, agents, contractors, and vendors, to the extent they have the ability to use, store, and transfer the Trainee Data, each possess the appropriate permissions, authorizations, and rights to disclose or deliver the Trainee Data to MyTIPreport for use and storage in the System as envisioned under the Agreement. MyTIPreport disclaims and any liability resulting from claims due, in whole or in part, to MyTIPreport’s use or storage of the Trainee Data in accordance with the services provided in the Agreement.
MyTIPreport will not and does not populate, edit, manage, modify, delete or otherwise directly handle any Client Data without the express written consent and instruction of the Client. It is the Client’s responsibility to vet the accuracy and quality of Client Data. MyTIPreport shall be entitled to rely on the accuracy, truthfulness and completeness of all Client Data. Client agrees that if the Client Data is not provided in the agreed-to format, reformatting may alter time-frames and costs of the implementation.
MyTIPreport may compile and use statistical, diagnostic, technical or general usage information related to the System, and may in some cases make such information publicly available, provided that such information is aggregated, de-identified, and/or made anonymous and does not identify Client Confidential Information, personally identifiable Client Data or include Client’s name. MyTIPreport retains all intellectual property rights in such information.
MyTIPreport shall be responsive to individual rights with respect to personal data as provided by law. Upon receipt of request of an Authorized User seeking to change, obtain copies of or delete personal data maintained by MyTIPreport, MyTIPreport first will direct such Authorized User to contact Client as the data owner. If Client instructs MyTIPreport to respond to the User’s request, MyTIPreport will do so provided that the request does not conflict with any obligations MyTIPreport may have under law. If Client fails to provide instruction and the User continues to seek enforcement of his/her rights, MyTIPreport will perform such requests to the extent required by law.
MyTIPreport’s Confidential Information. Subject to any exceptions pursuant to public records laws, Client agrees that any information Client receives or reviews concerning MyTIPreport, including, but not limited to, any information concerning MyTIPreport's past, present and future research, marketing, development, operations and business activities, Documentation and other information regarding the System, methods of database creation, MyTIPreport's translation, standardization, enhancement, and data analysis techniques, MyTIPreport’s data reporting methods and formats, MyTIPreport’s software tools for report creation, distribution and retrieval, associated algorithms, tools, programs, software architecture and technology, MyTIPreport’s security documents, such as, but not limited to, responses to security questionnaires, System and Organizational Controls (“SOC”) reports, penetration testing reports and Voluntary Product Accessibility Template (“VPAT”) reports (together “Security Documents”), and any other information or material proprietary to MyTIPreport of which the Client may obtain knowledge or access from MyTIPreport during MyTIPreport's performance hereunder (hereinafter "MyTIPreport Confidential Information") is proprietary and confidential to MyTIPreport. Client agrees, on behalf of itself and all of its agents, to hold in confidence and not to directly or indirectly reveal, report, publish, disclose or transfer any of the MyTIPreport Confidential Information to any person or entity, or utilize any of the MyTIPreport Confidential Information except as otherwise agreed to in writing by MyTIPreport and Client. For the avoidance of doubt, the System, Security Documents, and all MyTIPreport Confidential Information related to the System or marked as “trade secret” by MyTIPreport is trade secret information of MyTIPreport.
Client’s Confidential Information. MyTIPreport agrees that any information MyTIPreport receives or reviews concerning Client, including, but not limited to, any information concerning Client's past, present and future research, marketing, development, operations and business activities, all Client Data input by or for Client, all reports generated using such Client Data, information regarding Client's users and evaluation results, information regarding the Client’s products and services, documentation and reports generated by or for Client and any other information or material proprietary to Client of which the MyTIPreport may obtain knowledge or access from Client during MyTIPreport's performance hereunder (hereinafter "Client Confidential Information") is proprietary and confidential to Client. MyTIPreport agrees, on behalf of itself and all of its agents, to hold in confidence and not to directly or indirectly reveal, report, publish, disclose or transfer any of the Client Confidential Information to any person or entity, or utilize any of the Client Confidential Information except as otherwise agreed to in writing by MyTIPreport and Client.
Information Not Deemed Confidential. Nothing in this Agreement shall be construed to restrict disclosure or use of information that (i) was in the possession of or rightfully known by the recipient, without an obligation to maintain its confidentiality, prior to receipt from the other party, (ii) is or becomes generally known to the public without violation of this Agreement, (iii) is obtained by the recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality, or (iv) is independently developed by the receiving party without the participation of individuals who have had access to the other party's confidential or proprietary information.
Use or Disclosure of Confidential Information. Except as otherwise permitted herein, each party agrees that, with respect to the Confidential Information of the other party, (i) it will use such information only as may be necessary in the course of performing duties, receiving services or exercising rights under this Agreement, and (ii) it will not otherwise appropriate such information to its own use or to the use of any other person or entity. Each party agrees to take at least such precautions to protect the other party's Confidential Information as it takes to protect its own confidential information, but in no event less than reasonable precautions. If either party believes it is required by law, by a subpoena or by court order to disclose any of the other party's Confidential Information, it shall promptly notify the other party prior to any disclosure and shall make all reasonable efforts to allow the other party an opportunity to seek a protective order or other judicial relief.
Confidentiality of Agreement. Client will not disclose any of the terms of this Agreement or any appendix or exhibit to this Agreement (including without limitation the Order Form) to any other party, except as authorized by MyTIPreport in writing or to the extent required pursuant to applicable law (including without limitation applicable public records laws).
Warranty. MyTIPreport represents and warrants that it will provide the System in a professional manner consistent with general industry standards and that the System will perform substantially in accordance with the Documentation. If Client notifies MyTIPreport of a breach of this warranty in writing, MyTIPreport shall correct such breach in accordance with its maintenance obligations. In conjunction with Client’s right to terminate for breach where applicable, the preceding sentence states MyTIPreport’s sole obligation and liability, and Client’s sole remedy, for breach of the warranty in this Section 10.1. The warranties set forth in this Section 10.1 apply only to use of the System in accordance with this Agreement and the Documentation, and do not apply if the software code for the System has been subject to accident, misuse, or modification (other than by MyTIPreport), and only if the nonconformance can be demonstrated on an unmodified version of the System.
Warranty Disclaimers. Except to the extent set forth in Section 10.1 above, CLIENT ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. MYTIPREPORT DOES NOT GUARANTEE THAT THE SYSTEM WILL MEET CLIENT’S SPECIFIC REQUIREMENTS OR THAT THE SYSTEM WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION, NOR SHALL MYTIPREPORT BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CLIENT DATA, FILES, OR PROGRAMS. WHEN MyTIPreport makes the System available for institution use, CLIENT understands and acknowledges that the System is not intended to suggest or replace any JUDGEMENT OF THE INSTITUTION WITH RESPECT TO EVALUATIONS, GRADES OR PROMOTIONS OR THE JUDGEMENT, decisions or actions OF MEDICAL professionalS with respect to a patient’s medical care, and that CLIENT is solely and exclusively responsible for monitoring and verifying the input to the System, and for determining the accuracy, completeness or appropriateness of any EDUCATIONAL, financial, clinical or medical information, or other output provided by the System.
Indemnification by MyTIPreport. If a third party makes a claim against Client (i) that the System infringes any patent, copyright or trademark of a third party, or misappropriates any trade secret of a third party, or (ii) that MyTIPreport’s negligence or willful misconduct has caused bodily injury or death, MyTIPreport shall defend Client and its directors, officers and employees against the claim at MyTIPreport’s expense and MyTIPreport shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by MyTIPreport, to the extent arising from the claim. MyTIPreport shall have no liability for any claim based on (a) loss of Client Data, (b) modification of the System not authorized by MyTIPreport, (c) use of the System other than in accordance with this Agreement, or (d) a combination of the System with hardware, software or other materials not developed by MyTIPreport. With respect to a claim under subsection (i) above, MyTIPreport may, at its sole option and expense, procure for Client the right to continue use of the System, modify the System in a manner that does not materially adversely affect the functionality of the System, or terminate the affected Order Form and refund to Client any unused amount for the unused Subscription Term following the termination date.
Indemnification by Client. To the extent permitted under applicable state law, if a third party makes a claim against MyTIPreport (i) that the Client Data infringes any patent, copyright or trademark, or misappropriates any trade secret or (ii) arising from or related to any unauthorized use or disclosure of MyTIPreport Confidential Information or MyTIPreport IP by Client, its employees or any other authorized person to whom Client has disclosed the MyTIPreport Confidential Information or MyTIPreport IP, Client shall defend MyTIPreport and its directors, officers and employees against the claim at Client’s expense and Client shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Client, to the extent arising from the claim.
Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information, and authority reasonably requested by the other party in the defense and settlement of the claim.
NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF MYTIPREPORT) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S (NOR ANY LICENSOR’S OR OTHER SUPPLIER’S OF MYTIPREPORT) AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CLIENT UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE.
Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no MyTIPreport employee or contractor will be an employee of Client.
Notices. Except as otherwise permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (a) when delivered if delivered personally or sent by express courier service five, or (b) when transmitted by email, provided that a copy of the notice is promptly sent by mail or express delivery. All mailed notices shall be sent to the other party at the address set forth on the active Order Form(s).
Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, pandemics, endemics, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
Feedback. MyTIPreport has not agreed to and does not agree to treat as confidential any suggestion, enhancement request, customization request, recommendation, or idea for improving or otherwise modifying any of MyTIPreport’s products or services (“Feedback”) Client or Authorized Users provide to MyTIPreport. Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict MyTIPreport’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client or the Authorized User in question.
Assignment & Successors. Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this Agreement relates, whether by merger, change of control, asset sale or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns.
Severability; No Waiver. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
Choice of Law. If the Client is a government entity or a political subdivison of a federal, state, or local government within the United States (a “US Public Entity”), this Agreement will be governed by the laws of the state in which such Client is located, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. If the Client is not a U.S. Public Entity, this Agreement will be governed solely by the laws of the Commonwealth of Massachusetts, without reference to (a) through (c) listed above.
Technology Export; Export Controls. Client acknowledges that the MyTIPreport Confidential Information, including MyTIPreport’s intellectual property, is subject to US regulations, including but not limited to US export controls, and sanctions regulations. Client agrees to strictly comply with all applicable requirements of such US regulations and laws. Client shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; (b) export, divert, transfer or disclose, directly or indirectly, any software or intellectual property provided by MyTIPreport or otherwise remove it from the United States in violation of any US law or regulation, including but not limited to those listed at listed at https://build.export.gov/main/ecr/eg_main_023148; or (c) permit any third party to access or use the System in, or export such software to, a country subject to a United States sanctions. Client will cooperate with MyTIPreport’s requests for information so that MyTIPreport can complete any US Export Control requirements, no less frequently than annually. Any breach of this Section is a material breach of this Agreement and MyTIPreport may immediately terminate this Agreement.
Customer Reference. Neither party may advertise or promote itself using the name, mark or description of the other party, without the written consent of the other party in the case of each such use. Notwithstanding the foregoing, Client agrees that MyTIPreport may identify Client as a recipient of services in sales presentations, marketing materials and its website, including through use of Client’s mark and logo, provided that this Agreement is then in effect and that Client’s identification is not given more prominence than any other client on that list or material.
Entire Agreement. This Agreement (including all Order Forms executed by Client and all documents linked to or referenced herein) contains the entire agreement of the parties and supersedes all previous agreement and all oral and written communications by the parties concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed by both parties. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms. The parties agree that the terms of this Agreement result from negotiations between them, and this Agreement will not be construed in favor of or against either party by reason of authorship.